Archive for the ‘Copyrights’ Category

Gaiman wins characters from McFarlane

Wednesday, February 25th, 2004
Contracts Copyrights

Neil Gaiman has won the appeal of his case against Todd McFarlane, giving him co-ownership of Angela, Medieval Spawn, and Cogliostro, the characters he spawned in his script for Spawn #9. The gist of the decision was that, in absence of a written contract assigning copyright of the script to McFarlane, Gaiman has co-ownership of whatever characters he created in it. (Because McFarlane illustrated the stories, contributing his own ideas to the characters as he drew them, he has co-ownership of them.) It has almost no bearing on the prospects of seeing Miracleman back in print soon… but that’s because it wasn’t really an obstacle in the first place.

One of the tricky aspects of the case was the nature of Gaiman’s and McFarlane’s agreement. It had been a handshake deal, with McFarlane merely promising to treat Gaiman “better than the big boys” (Marvel and DC) would treat him. Gaiman finally ended up asking that McFarlane just treat him the same as the big boys (specifically DC) do.

The court considered the possibility that this meant just a Work For Hire agreement, like Marvel and DC usually offer writers. But because Gaiman wasn’t treated as an employee (with a salary, benefits, etc.) and because there was no signed piece of paper saying that it was Work For Hire (like Marvel and DC have writers sign), it was not WFH. That means Gaiman is co-creator, and co-owner of everything new he added to the Spawn story in issue #9.

McFarlane had conceded that Gaiman co-created (and co-owned) Angela. He disputed Gaiman’s claim to Medieval Spawn and Cogliostro.

One of the issues of the case was whether the statute of limitations had run out on Gaiman’s suit. Under federal copyright law, the injured party has 3 years to sue once he discovers that someone is claiming to own something he created. McFarlane tried to argue that the copyright notices he’d put in Spawn #9 (in 1992) and in the later reprints of that issue and Gaiman’s Angela mini-series (in 1997), had notified Gaimain of his claim. But the court ruled that these weren’t sufficient notice, because the first copyright statement was ambiguous and the author wasn’t expected to read the copyright statements in the reprints. There was also the example of McFarlane’s copyright registration, but the court said Gaiman wasn’t expected to watch the Library of Congress records, either. Furthermore, McFarlane had referred to Gaiman as “co-creator” of these characters and paid him royalties, as he’d be entitled to as co-owner.

The first unamiguous claim of sole ownership didn’t come until February 1999, when McFarlane sent Gaiman a letter declaring (emphasis added) “all rights to Medieval Spawn and Cogliostro shall continue to be owned by Todd McFarlane Productions”. Gaiman filed his suit one month before the 3-year limit.

The statute of limitations question turned out to be a red herring, because Gaiman wasn’t claiming that McFarlane had violated his copyright. As co-owner, McFarlane had every right to publish Angie, Med, and Cog. The issue was simply whether Gaiman had been given his fair share of the profit.

McFarlane also had a backup argument for why Gaiman couldn’t be co-owner of the two disputed characters: they weren’t copyrightable. For example, he claimed that Count Nicholas Cogliostro was just a “stock” character, and you can’t copyright a character which is nothing more than a standard literary cliché. But the court ruled that Cogliostro was distinctive enough to be copyrighted, and that each of the people who contributed to building that distinctive character (Gaiman’s description and name, McFarlane’s somewhat differing illustration) was a co-owner. The question of Medieval Spawn’s copyrightability was settled by declaring that he was sufficiently different enough from the Al Simmons Spawn character to be distinguishable from the original (but still a derivative work that would automatically give Spawn’s original creator certain rights to him).

Incidentally, there’s nothing fishy about McFarlane having two mutually inconsistent arguments for why Gaimain’s suit is invalid. For one thing, it’s common practise in legal matters to have a Plan B in case Plan A doesn’t work. In fact, if Plan A failed, and Plan B - which the lawyer didn’t use because he didn’t really agree with it - would have worked, the client could sue the lawyer for malpractise. In an adversarial legal system, it’s the lawyer’s job to win, not to be right. Second, it’s a bit like saying that you didn’t shoot someone, and you can prove it because A) you were out of town when it happened, and B) you don’t know how to fire a gun. Whichever convinces the jury.

Lawyers and judges tend to get a bad rap as obfuscatory blowhards. But if you read the actual decision written by the court, you’ll find a rather personable, well-reasoned, and in places just a wee bit sarcastic description of what the real issues involved were and how they applied to this situation.

Note that this ruling says absolutely nothing about Miracleman. (It mentions him, but it also mentions the Lone Ranger and Sam Spade. Doesn’t mean Gaiman owns either of them.) Gaiman has been trying to piece together the rights to Miracleman so he can re-publish the existing work and finish the story. McFarlane has believed (or at least claimed) he owned some or all of those copyrights, and Gaiman had offered to exchange his rights to Angie, Med, and Cog. But Gaiman now believes that McFarlane actually owned very little, and what little he did have (Eclipse’s trademark registration for the “MM” logo) have lapsed. He’s opposing McFarlane’s attempt to re-register the trademark. (One of these days I’m going to have to get to work on an article about that whole Miracleman mess.)

Neil Gaimain has commented about the verdict on his blog.

DC may already own your story

Thursday, October 16th, 2003

Sometimes people do the right thing for the wrong reason. That might not be such a big deal, but when the person in question is a judge ruling in a trial, those wrong reasons can be a serious problem. For example: In June 2003, the Court of Appeals for the Third Circuit ruled that DC Comics was innocent in a “they stole my story” suit (which happened to be the right answer), because the story in question was about Superman, a character DC owns (which is absolutely the wrong reason).

Heck, one of the most remarkable things about this case is that nearly everyone involved in it is wrong.

The case was a fairly typical one of this sort. Marcel Walker was a life-long Superman fan and a graphic designer, with aspirations of creating comics professionally. He had a clever idea for a Superman “Elseworlds” story, turning the origin story around and having Clark Kent be a human sent from the dying planet Earth, to be raised by Jor-El on Krypton. In 1998, he wrote it up as a proposal, and sent it to DC for consideration. He titled it “Superman: Last Son of Earth”.

If that title sounds familiar, it’s because Steve Gerber later wrote an Elseworlds limited series with the same name, with the same basic premise. It was illustrated by Doug Wheatley, then published by DC in 2000. When Walker learned about it, he reacted like just about anyone would: He felt like DC had ripped off his idea. He contacted a lawyer, who said he had a case against DC.

The lawyer was wrong. OK, maybe Walker had a case, but it was a weak one. Even if DC did take the idea for this story from his proposal, that’s not a copyright violation in itself. The idea, while somewhat clever, is something someone else might have easily come up with as well. Copyright doesn’t cover ideas, only the creative expression of an idea. So unless DC also ripped off original elements of his plot and he can prove that they got those elements from him (which doesn’t appear to be the case), they didn’t technically steal anything.

I don’t blame Walker for feeling the way he did. (I have a friend who recently experienced the same sort of thing, and he wanted badly to sue someone for it.) But an idea’s just an idea, no matter how much it meant to you, and how unfair it is that someone else had the same idea and managed to get further with it than you did. Sorry, dude.

On the other hand, DC’s claim - that they automatically own the copyright on Walker’s proposal because it’s based on their copyrighted characters and past stories - is a gross misinterpretation of the law. By that legal reasoning, publishers can simply steal writers’ proposals (regardless of whether they actually did in this case), simply because something they own appears in it. The DC lawyers who made this argument were just doing their job, which is to use whatever legal argument might win the case, so I don’t really blame them. The judge who bought the argument was not doing his job, and deserves most of the blame.

Just as an example, this ruling means that every Marvel-Universe script currently sitting unread in the Epic office already belongs to Marvel. If they like your plot but your pacing sucks, your characterisation is all wrong, and your dialog is laughable, they can just give the script to another writer, ask him to script the same story at a professional level, and tell you to shove off, and no they aren’t paying you for your script. Same with the clever new character you introduced in a team-up with Wolverine: the “underlying work” of the Marvel Universe and X-Men belongs to Marvel, so you don’t get copyright protection for the bit you just donated to them. This is worse than Work Made For Hire; it’s Work Made For Nothing. In short, this interpretation is a disaster for freelancers.

Yes, DC does own Krypton, Clark Kent, etc. and this gives them the legal right to prevent Walker from publishing the story he wrote using these elements as its foundation. Copyright gives them that veto power. But it doesn’t give them viral power, to “infect” Walker’s original ideas with their ownership and convert them into DC’s property as well.

Walker’s lawyer argued that his use of DC’s copyrighted characters in his springboard was “fair use”. Too bad Fair Use doctrine says nothing even remotely like that. It’s all about parody, and borrowing excerpts for educational purposes or commentary. It sounds like his lawyer was just throwing every possible argument against the courtroom wall and seeing what stuck. I suppose you could say he was just doing his job, but doing it properly would have meant pointing out the flaws in DC’s counter-argument, and how they undermine the very process under which freelancing works, and misconstrues the whole point of copyright law.

There’s a vanload of case law that specifies how a copyright case of this sort should be tried. Walker has to provide evidence that he wrote the original proposal, that he sent it to DC when he claims, that DC read the proposal, that the proposal was shown to (or summarised for, or otherwise made its way to) writer Steve Gerber, and that Walker’s original story elements appeared in the final product. He didn’t do that.

For one thing, he used the so-called “poor man’s copyright”: mailing a copy of the script to himself as proof of his authorship and the date. That’s so easy to fake (e.g. mail yourself an unsealed envelope) that it proves nothing. He also failed to prove (or even provide evidence) that Gerber ever saw his story (which Gerber flatly denies, and he has no history of ripping off others’ work). And finally, there’s nothing in the published story that resembles Walker’s proposal, except for coincidences that follow naturally from the basic premise. Even the title is no proof of anyone copying anything: it’s an obvious twist on Superman’s nickname “Last Son of Krypton”. (If it were possible to copyright a title, Walker might have had a case on that point, but it’s not.)

So far I haven’t heard of any repercussions or follow-up on this case. Walker probably can’t afford to appeal, which is a bad way for this sort of thing conclude. The ruling and the arguments for it are now part of U.S. case law, and can be cited in future cases of this sort. Because it apparently gives a Get Out of Litigation Free card to any publisher who actually does rip off a “rejected” proposal using their characters, it’s bound to show up eventually. I can only hope that a judge with a clearer grasp of the principles and prior case law applying to copyright, and the authority to overturn an Appeals Court ruling, will do so.

Actually there has been one definite lasting repercussion of this case. After Walker filed his original suit, the legal advisors at Time-Warner convinced management that it would be prudent to close the door that this nuisance suit came through. So they stopped accepting unsolicited submissions. Even after winning, the policy remains in place. Dealing with proposals tossed over the transom has always been a hassle, and their rolodex is full of talented creators they can invite to send them pitches when they have an opening in the publishing line, so no one at DC is eager to change it back. It’s always been a long-shot for hopeful creators, but it’s a shame that it’s no longer even an option.

Captain Marvel vs. Captain Marvel

Tuesday, October 14th, 2003
Copyrights Trademarks

[AndyRooneyVoice]You know what really bugs me? Captain Marvel. I never know which one somebody’s talking about! I’m not talking about the fact that there’s a new Captain Marvel, or Captain Marvel Junior and Captain Mary Marvel, and so on. I’m talking about DC’s Captain Marvel and Marvel’s Captain Marvel. What’s up with that?[/AndyRooneyVoice]

Seriously, this is exactly the kind of confusing situation that intellectual property laws were supposed to prevent. But obviously they haven’t. How can two different companies both have characters called Captain Marvel? Isn’t that a violation of copyright or something?

Well, it’s not a violation of copyright, because you can’t copyright a name. Copyright can only be applied to something more substantial, like a novel, or an essay, or (at the short end of the scale) a short poem. A complete comicbook character can also be copyrighted. But that means his appearance, his origin, his characterisation, etc. Not his name.

Character names are only covered by trademark law, and trademark protection isn’t nearly as broad or secure as copyright protection. It only covers “marks” (such as logos or names) used “in trade” (the packaging and marketing of goods and services). Think of it this way: copyright applies to the entire contents of a book, from cover to cover. Trademark applies to only the cover. That’s because the cover is what shows on a retailer’s display rack: the marketing part.

The idea is that the producers of a product should have a way to uniquely identify their product, to avoid their competitors using the same name or logo to trick people into buying theirs instead. If Pepsi could put the name “Coca-Cola” and that curvy white line with a red background on their cans, that would lead to what’s called “confusion in the marketplace”. Even if they put “Pepsi” on the back of the can, and it tasted like Pepsi, people might still mistake it for The Real Thing.®

The DC “bullet” is a trademark. The Marvel “M” is another one. And so is the name “Captain Marvel”. Marvel Comics owns it. This means that DC can’t put that name on the cover of their books… not even the ones starring their own Captain Marvel. This is why his most recent comics series was called The Power of SHAZAM! instead, and why the 1970’s Saturday morning TV show was simply call SHAZAM! As a consequence, the character is actually better known among the general public by that name, rather than his own.

It didn’t used to be that way. Captain Marvel (referring to the lightning bolt guy) used to be a household name. The words “Captain Marvel” could be seen on comics racks across America. For a while, his creative, whimsical superheroic adventures sold even better than Superman’s. But in those days, he was published by Fawcett, a rival of DC Comics. DC sued, claiming that Fawcett’s flying, super-strong, caped hero was a rip-off of theirs. To an extent, he was, but no more so than countless other superheroes to come along since 1938. He was actually unique from Superman in many ways (his alter ego was a human boy, he was magically powered, and the lightning bolt schtick was completely original). But Cap was a threat to DC’s übermensch, so they sued. Fawcett fought for years, but eventually settled, and agreed to stop publishing the character. The name “Captain Marvel” disappeared from the public eye for over a decade.

One thing that makes trademark rights different from copyrights is that they don’t last a fixed term and then expire. They can last forever. Or they can evaporate from disuse. So as the years passed and the name “Captain Marvel” lay unused, it lapsed into the public domain. Then some clever folks at Timely Comics got the idea of rebranding the company as “Marvel Comics”. If they’d done that during Billy’s heyday, Fawcett could have sued them for using that name, but it was no longer an issue. Then Marvel dusted off the name “Captain Marvel” and applied it to a new character, one whose real name was Mar-Vell. They registered it as a trademark. It was theirs.

More time passed, and DC licensed the rights to Fawcett’s catalog of characters, including Billy Batson and his alter ego. They later bought the property outright. They’d acquired the copyrights, but the associated trademarks no longer existed. And Marvel now had a lock on “Captain Marvel”. Which is pretty much where we are today.

Mar-Vell has never reached Billy’s public familiarity; if you asked people on the street to describe “Captain Marvel” most would just shrug or stammer, but of the rest, the majority would describe the guy with the lightning bolt on his chest. Between his comics run in the 1940’s and his TV show in the 1970’s, he’s simply had more exposure. Being one of the few superheroes to die and stay dead hasn’t helped Mar-Vell’s current familiarity either. But with trademark law firmly on his side, he can beat Billy Batson any month of the year, in any court in the land.

Then there’s the matter of Billy Batson’s British cousin: Marvelman. But that’s a huge can of wiggling, writhing, and still-very-much-in-question intellectual property worms. I’ll save that for another time.

Fan art

Monday, October 13th, 2003

If DC Comics had a dollar for every drawing of the Superman made over the last 65 years, it’d make a substantial impact on their net worth. Same with Marvel and Wolverine. Even a relative newcomer like Todd McFarlane would do well with a dollar for every Spawn sketch ever made. After all what comics fan didn’t at least take a stab at drawing their favorite characters as a kid? Some keep at it, and the drawings progress from the family room floor to the refrigerator door to the bedroom walls to the school notebooks to the college portfolio. And every last one of them is done without permission from the copyright holder.

Back in 1938, Joe Schuster drew a man in tights and a cape with an “S” on his chest. He sold the copyright to the company that is now known as DC Comics, and that means that only DC has the legal right to copy Joe’s illustration. Even if you don’t duplicate it line for line, you’re making what’s known as a “derivative work”, and copyright law says you need permission to do that. So is DC going to sue little Jacob for his rendering in green crayon? What about Nathan’s notebook of homemade pin-ups? Or the sketches that Jon - who used to draw the character for DC - does at conventions?

The answer is no. Maybe the could, but they’re not going to.

The thing about copyright is that it’s not “illegal” - in the sense that the cops might arrest you for it - to copy someone else’s property. It’s only “against the law” - in the sense that you’re doing something you don’t have a legal right to do - which means that it’s up to the owner to decide if it’s OK or not. And the owners of most comics characters generally don’t mind that fans draw the characters for fun, or that pros draw them at cons for a few bucks on the side. The publishers recognise it as harmless to them, and probably good for fostering the affection of fans. Technically these “bootleggers” are doing it without getting explicit permission, but the persmission has been given implicitly. Fan art is OK… because the owners say it’s OK.

Where you’re likely to run into trouble is if you start taking your drawings and put them into production. Rather than selling sketches for a few bucks a pop, you take one of your better drawings and start making prints of it. At that point, most publishers see your activities differently: you’re publishing. Which is their line of work. When/if they find out about it, you can expect a “cease and desist” letter, and if you don’t comply they’ll likely take you to court.

It doesn’t matter (much) whether you’re making money from it or not. Copyright law doesn’t care. All it says is that the owner has the right to say “yes” or “no”. The only time the profit question comes into play is when the judge (assuming you’ve been found guilty of violating the owner’s copyright) decides how much your fine is going to be. Copyright violation without profit generally gets the plaintiff only statutory damages, which can range from $500 to 20,000. Copyright violation with profits, can get exemplary and punitive damages added on, which can go much higher, depending on the amount of money involved and just how evil you were about it. (Yes, the courts can take the “evilness” of your actions into account.)

In the past decade, another wrinkle has been added to this question: the Web. If I make a drawing of “my fav’rit” Superman, scan it, and put it on my web site, is that the same as making it and showing it around to my friends (which is OK), or is it equivalent to making prints and giving them away? It’s somewhere in between, and generally subject to the “sniff test”. If it “smells” like just a fan showing people how he drew his hero, they’ll let it go. If it has the stench of someone trying to take advantage of the character, or possibly undercutting the publisher’s own use of him, they’ll stomp.

Some people will argue, “I’m not making the copies, the people downloading it are!” Don’t count on the courts to buy that reasoning. You might get a Strict Constructionist who agrees that you’re not in literal violation of copyright, but you might get a Loose Constructionist who interprets whether you’re acting consistent with the spirit of the law and throws the book at you.

Another factor that can come into play here is trademark. But that’s a topic for another day.

Comics and digital copy protection

Saturday, October 11th, 2003

Dirk Deppey, perpetrator of The Comics Journal’s weekdaily ¡Journalista! newsblog, just posted a pointer to an essay he wrote about file formats for digital comics. He has a good handle on the historical examples of the music and video industries, the legal issues involved in encryption and copy-prevention technology, and also the whole open-source software phenomenon. So rather than writing up an article about this myself, I’ll refer you to his. {smile}


I do take issue (somewhat) with his implication that a proprietary format for “e-comics” is likely to displace any open format for them, making it impossible for the proverbial self-publisher to publish and distribute his wares. Despite the foothold that proprietary anti-copying formats have gained in video, and the possibility that they might win legislative backing in audio, support for more or less “open” formats is still widespread. Players for unencrypted MPEGs (for movies) and MP3s (for music) are widely available and seem likely to remain that way. Even when/if proprietary formats become the norm for these media, if a movie studio or music label of whatever size decided to start releasing their wares in VCD or MP3 disk format, they’d find a large market of players for them.

The same is true of comics. Perhaps even moreso, because comics are such a fundamentally “recordable” medium. (We’ve been putting images on flat surfaces for millennnia; capturing sounds and moving pictures are very recent innovations.) So I don’t think it’s likely that the non-proprietary digital formats that currently enable you to self-publish comics on a shoestring budget (PNG for flat line art, JPEG for fully-rendered art, perhaps SVG for Illustrator/Freehand-style art) will no longer be supported. These formats are essential to the Web as we know it, so browsers will have to support them. (Even if these standards are eventually replaced, there will still be a need to display images on screens without mucking about with digital rights management. Something equally unrestricted will replace them.) Open graphics formats should remain as available to digital zinesters as paper and photocopiers are to the current analog counterparts.

Proprietary data formats are definitely something to be fought, both on principle and to preserve the rights of legitimate consumers of music and movies (to say nothing of poor Microsoft Word users, with documents that Microsoft is trying to partially encrypt whether they like it or not). And it’s certainly possible for a combination of market domination, craven poltiicians, and apathetic consumers to make your worst-case scenario come to pass. But I’m not losing much sleep over the prospect of getting locked out of the comics distribution market… at least not that way.