Archive for the ‘Contracts’ Category

TokyoPop Manga Pilots contract examined

Wednesday, May 28th, 2008

TokyoPop, one of the first publishers to make a big splash in publishing translated manga in North America, has a new program underway to recruit new creators and publish new material. It’s called their “Shining Stars Program”, and the Manga Pilot part of it seems to be inspired - or at least influenced - by DC Comics’ Zuda Comics venture.

Unlike Zuda, which is a recurring competition inspired - or at least influenced - by American Idol, this is more like an open focus group. TokyoPop is soliciting “pilots” for new manga series (like TV series pilots), it’s publishing online the ones it thinks have potential, and it’s asking for feedback from the public.

What I’m going to do here is similar to what I did at the dawn of Briefs on the Outside, when I translated the contracts Marvel was offering for Epic Comics into regular English, and explained what they meant. What’s different this time is that TokyoPop didn’t write this contract in Legalese; they translated it into conversational English. (I’d like to think they were inspired - or at least influenced - by the breezy style of my Epic translations, but probably not.) Regardless of the dialect, it’s legally binding, and requires some interpretation.

There are two versions of “the pact” (which is what TokyoPop is calling the contract, as part of the effort to make it less intimidating): a “solo” version for individuals, and a “duet” version for writer/artist teams. Obviously the “duet” version has room to provide information for more than one creator. The “solo” version is not - as you might assume - just for writer-artists who’ll do the whole thing themselves. On the contrary, it’s also for writers who are looking to be hooked up with artists, and artist looking to be hooked up with writers. But for the most part they are the same, with a few extra provisions to deal with the “solo” participants.


That’s one of the points made on the first page: the contracts they’re offering are the same for everyone. There’s no special treatment for established professional creators… but no special treatment for naive first-time wannabes, either.

The TWO BASIC TERMS and A PACT FOR YOU AND US sections establish the terminology that’s going to be used in this contract. It’s their substitute for the “hereinafter referred to” language in the opening section of most contracts.


This section is pretty self-explanatory: Fill in the information it asks for.

If you’re under 18, you can still submit a pilot, but you’ll need your legal guardian to agree to the contract for you, since minors don’t have the legal authority to do that.

For the “duet” contract, you need to specify how you’re going to split up the money. Note that they’ll only pay if they accept your pilot; if they reject it, you don’t get anything.


This establishes what the content restrictions are: It has to be suitable for people who are not old enough to drive a car. If what you turn in doesn’t meet this standard… well, the first thing they’ll probably do is ask you to change it. But if you won’t, you’ll be in default of the contract, which has some serious repercussions on the section coming up about “what we (TokyoPop) agree to do”.

The “solo” version includes an extra section explaining how they’ll assign artists and writers to each other. The writer does have the right to approve the artist assignment. On the other hand, it also explains that the writer doesn’t have final say about the art itself, and explains what every comics writer-who-isn’t-the-artist needs to understand: it won’t look like the pictures in your head, and you have to accept that. Likewise, if you’re an artist and they assign a writer to you: the story is going to be different from what you were thinking.

Solo or duet, you’ll also be assigned an editor. The contract doesn’t stipulate that the editor has any specific authority, implying that you can ignore their suggestions. Which you can, but the contract doesn’t need to say this because TokyoPop has the final decision on whether to accept your pilot when it’s finished. If the editor says you should replace the monkey with a robot, you ignore the editor, and the rest of the folks at TokyoPop don’t like the money… the work might not get accepted, and you don’t get paid for it.

If you’re just-a-writer, you have to turn in a panel-by-panel script with dialog. If you’re just-an-artist, you will be expected to finish (i.e. inks and tones) the art, and do the lettering. Plus submit it in the right format, which is perfectly reasonable to expect. The deadline for completion is something the creators have a say in; if they’re more than a month late… your rights in that case will be covered later in the contract. Hold on tight.


The next part of the contract is where you certify that you are creating this all yourself, without ripping off any other creator or copyright holder. This is a good reminder to creators of what copyright law requires, but it’s real purpose here is to cover TokyoPop’s ass: If you violate someone’s copyright, it’s your fault, not theirs. The pact gives the year 1909 as the cut-off for Public Domain, which is… oversimplifying it a bit, but it’s a workable standard. Likewise, they forbid anything involving real people, because that might possibly violate libel or slander laws, or someone’s “right of publicity”.

Like I said, this is an ass-covering move by TokyoPop, and their lawyer did a good job of spelling this out under DEFENDING YOUR WORK. It’s all on you. They claim that this is a pretty standard clause in contracts of this sort, because no publisher ever wants to be named in a copyright or defamation suit. And based on other contracts, I’ve seen, it’s true.


TokyoPop doesn’t want anything that’s already been published or otherwise “exploited” elsewhere, in any form, in any medium. Not even for free. Not even a preview or an announcement. Unlike publishers who might be interested in picking up a successful or popular webcomic, they are looking for things that are completely new to the entire reading public. Likewise, they want exclusive rights to it for a period of time, which is reasonable. The term they’re looking for is 1 year after they accept it, which is also reasonable… as long as they’re actually doing something with it. That’s an issue that will come up in a bit.


They’ll pay you for your pilot. Even if it never gets picked up for the whole production, if the proposal itself makes the cut to be presented online, they’ll pay you for that much. Which isn’t a half-bad arrangement, really. The vast majority of 20-something-page proposals are done “on spec”, which means the creators never get a dime for them until/unless a publisher picks up the whole thing. TokyoPop will pay for the pilot within 30 days, which is typical terms for a business working with a contractor. If you want your checks mailed directly to your silver-haired mother back in Smallville, they need that in writing.

But there is a catch: they have to approve what they receive. The good news is that they list some of the reasons they might not approve it. Many of these are common sense (at least if you’ve been reading the contract so far). In addition to the works with legal problems, they might turn it down because the story or the art is - in their judgement - not up to their standards, or it doesn’t meet their content restrictions. They say that they’ll try to work with you to fix the material if that’s possible, and there’s no reason to think they won’t. But they don’t have to. If they don’t approve it (or take more than 30 days to approve it), you’re off the hook with the exclusivity.

If they approved the first pilot, and they think the first pilot did OK (but not spectacular) so they want a second one, they can request that, for the same fee as the first. Presumably you can decline, in which case the 1-year exclusivity on the first one continues. If you do a second one, the 1-year-exclusivity starts over again as soon as they accept that one, which (for all practical purposes) includes the original pilot (since the characters, etc. are presumably the same).


You gave them exclusive rights to sit on the material earlier in the contract, but here you give them exclusive rights to publish it. That’s to be expected.

They don’t have to pay you for the publication. That’s a little surprising. In theory they could publish your pilot in all sorts of media in huge volume, and not pay you anything beyond the fixed fee specified at the beginning of the contract. Even if they sell the material at a profit. They can even give other we sites the rights to your pilot. Also without paying you anything more for that.

They don’t have to keep your work the way you did it. They can do whatever it takes to shove your work into a cell phone screen or put it up on the silver screen

There’s been a bit of noise over the bit in this contract that requires the creator to give up the “moral rights” to their work. TokyoPop engages in a bit of anti-intellectual francophobia here, describing this as a “fancy French idea”, as if they were taking their cues from the G. W. Bush administration. To be fair, what they’re trying to do here is to take this contract out of the realm of European law - where moral rights typically apply to copyright - and limit it to traditional American law, which doesn’t specifically recognize moral rights in the same sense. It’s a bit more complex a matter than TokyoPop presents it as, however.

One of the key elements of moral rights (but not the only one) is the right to be credited for your work. TokyoPop requires that you give up this right, so that they have the freedom to publish your work in formats where giving credit would be difficult. This contract says that you are giving up this right, but the language of the contract would give you a pretty good case if they abused this freedom by not crediting you where it is easy to do so, such as on a printed copy or on a standard web site.


During the year that this project is “married” to TokyoPop, they don’t want you pimping it - or even just flirting - with other parties. You can’t negotiate with anybody else to do something with the material until the pilot itself is free and clear. Obviously they want first dibs on producing an actual manga book or series from it, or to adapt it any other medium. In some cases they might want to co-own the material, which would allow them to continue it without you, but might given them an added incentive to work it into something profitable; caveat creator. They don’t claim the right to do any of that; they just want to be the only people you talk to about it during that year. They figure that they’re promoting the work during that time (or at least are planning to do so), so they want to be the first ones to take advantage of that. Even after the year of exclusivity, they demand an opportunity to match any other offers you get.

Another right they keep even after the exclusivity ends is the right to continue publishing the work. You can still take it to other publishers, but if they still have copies in stock, they can still sell them, and if they want to go back to print they can do that too.


One nice thing is that there’s no non-disclosure requirement attached to this contract. The contract itself is being published, of course, so the terms can’t be a secret. But you don’t need to keep secret that you’ve signed it, which is not always the case.

In the event of disputes over this contract, they want to start with mediation, and then arbitration in LA, California. Mediation and arbitration are generally less painful solutions than actually going to court, so this is a perfectly understandable wish. And you can’t blame them for picking the jurisdiction they live in for it, since they don’t want to have to travel.


This contract has been lambasted on some blogs as the most heinous assault on creator rights since Jerry and Joe signed away ownership of Superman in 1938. That’s a bit of an exaggeration, to say the least. It does give TokyoPop some unusual rights, but not as bad as some folks are making them out to be. The exclusivity is unsurprising and fairly reasonable, and the abdication of the creator’s moral rights are merely Something To Think About Carefully rather than a reason to get up in arms and boycott a publisher. Like any other publishing deal, it all comes down to what you’re willing to give up in exchange for what the publisher will do for you. No one’s forcing anyone to sign anything they aren’t comfortable with.

Whoever owns the Man of Tomorrow?

Wednesday, April 9th, 2008
Contracts Copyrights Trademarks

Although I’m “retired” from blogging these days, I’ve had a number of people asking me about the Siegel family getting half the rights to Superman.  It’s a somewhat complicated situation, and depending on whom you ask it’s either a landmark victory for the little guy or a shameless money grab spelling doom for the greatest superhero ever.  But it’s really neither.  I’ll try to sort it out.

As a Distant Planet Was Destroyed…

Action Comics #1, panel 1It’s probably best to start at the beginning, which in this case is the early 1930s.  Two young men from Cleveland (one a childhood immigrant from Toronto) created a character named “Superman” whom they made the hero of a proposal for a newspaper comic strip.  Jerry Siegel and Joe Shuster shopped this strip around to the syndicates, but didn’t get any takers until 1938, when an editor at National Publications (the company that would become DC Comics) offered to buy it from them for $130.  

It wasn’t a good deal, but it was a deal, and they took it.  After all, this was nearly a decade into a global economic depression with wars looming overseas, and the sale included a promise that Joe and Jerry - by this time 23 years old - would have a job, writing and drawing the strip. Their first assignment was to rework the first several strips into a 13-page story which would be the lead feature in Action Comics #1.

It may be a familiar story, but the sequence of events is pivotal to this case. Siegel and Shuster didn’t create Superman as employees of National Publications, as an assignment from their boss. If they had, the character would have been National’s property, and that would be the end of it. In fact, they created him independently, then sold him to the publisher. The end result is nearly the same - the publisher owns it - but copyright law treats the situations differently.

We all know what happened after that: Superman became a huge success, spawning a newspaper strip, a radio program, motion picture serials, and a novel… all in just a few years. Shuster and Siegel tried to get National to compensate them better for their rather profitable creation, but were unsuccessful. To put it bluntly, Superman was worth far more to the publisher than Shuster and Siegel were, so the only time the company treated them well was when it was shamed into it, in the PR run-up to the release of Superman: The Movie. From a legal standpoint, none of this had any significance, because it didn’t affect the original facts of the matter: DC owned Superman, and Siegel and Shuster were just a couple of ex-employees. (The ownership of Superboy is a separate issue; I’ll cover that in another article.)

Congress Gets Involved

Meanwhile, the U.S. Congress was getting busy. To anyone who follows the history of copyright law, that’s an ominous statement. That’s because the reason Congress got involved was to protect the interests of big entertainment companies. At the time, the longest a copyright could last was 56 years, which would mean that Mickey Mouse would be in the Public Domain in 1984. With only years to spare, Congress acted quickly, extending copyrights to 75 years. Mickey would be securely in Disney’s hands until 2004. Superman would be the exclusive property of DC until 2014.

Or maybe not.

In a somewhat surprising outbreak of common sense and compassion, Congress acknowledged that they were giving copyright owners a free gift. When National bought Superman, their lawyer understood that the company would get exclusive rights to the character for 56 years at most. After that, he’d be public property, and their ability to make money from him would be undermined, because anyone could produce and publish Superman stories. The extra 19 years this legislation gave them was a windfall. A free gift.

Meanwhile, Congress recognized that it was common for unsophisticated creators, especially those in the early parts of their careers, to sell their creations to publishers in bad deals. Giving Siegel and Shuster $130 for Superman was like the legendary $24 for Manhattan: in retrospect an obvious rip-off. So Congress included a provision in the Copyright Act of 1976 that allowed creators who sold their creations like this to reclaim them when the original copyright would have expired. In other words, the free gift didn’t necessarily have to go to the current owner: if the original creator or his immediate family were still around to benefit from it, the free gift could go to them.

The Widow and the Orphan

Jerry, Joanne, and Laura SiegelJoe Shuster died in 1992 and Jerry Siegel died in 1996. But Siegel’s widow Joanne and their daughter Laura were eligible to reclaim their half of the copyright from DC. In theory, Shuster’s heirs could have done the same thing, but the 1976 law limited who was eligible to exercise this right. They didn’t want a second cousin once-removed or the church to which a childless author left his estate to try profiting from this provision. It was strictly for reasons of fairness to the creator and his family, not to transfer the windfall from one undeserving party to another. But Shuster didn’t leave any immediate family when he died. (More about this later.)

Joanne Siegel and her daughter Laura Siegel Larson filed the necessary paperwork to reclaim their husband/father’s copyright in 1999. DC understandably tried to prevent the transfer back. They tried negotiating with the Siegels. They argued that her transfer-termination notice wasn’t done properly. (Admit it: If you worked for a company that owned Superman, and your stockholders were bugging you about your profitability, you’d probably do the same thing.) But in March 2008, a judge ruled (mostly) in favor of the Siegels.

Action Comics #1, Clark and LoisMore specifically, the judge ruled that the 13-page Superman story in Action Comics #1 belongs to two parties: 1) DC and 2) the Siegels. As far as copyright law is concerned, Joanne and Laura Siegel wrote the story (Jerry’s contribution), and DC Comics drew it (Joe Shuster’s contribution). So they are co-creators of Superman. They are also co-creators of his alter-ego Clark Kent, his co-worker/love interest Lois Lane, his employer The Daily… Star, his boss… who apparently isn’t Perry White, his home planet… which isn’t named, at least in this story. And that’s about it. There are quite a few things associated with Superman that the Siegels can’t claim co-ownership of. Even though Jerry Siegel co-created many more aspects of the Superman mythos (e.g. Jimmy Olsen), he did that later, as an employee of National. So National automatically owned those things, which means DC owns them entirely today.

One could argue that the Superman of today is a different character than the one who appeared in Action Comics #1. That Superman didn’t fly, didn’t have X-ray vision, could only outrace an express train, and (by implication) could be harmed by a bursting shell. DC even presents the current Superman as a different character; the “original” Superman was sent into exile in the 1980s at the end of Crisis on Infinite Earths, and died recently at the end of Infinite Crisis. (You don’t have to be a raving conspiracy theorist to think that this is not a mere coincidence.) But it’s a weak legal argument. The Superman appearing in Action Comics #864 this month is clearly derived from Siegel and Shuster’s Superman, and the Siegels’ copyright entitles them to half of the profits from the character.

It’s Nice to Share

Co-ownership of a copyright isn’t like co-ownership of a house. In the case of physical property, if one owner wants to do something with it, he needs permission from the other owner. But with intellectual property such as copyrights, each owner is free to do whatever they want with it (within reason). The only real catch is that they have to share the profits. So DC is perfectly free to continue doing what they’ve been doing with Superman: publishing comics featuring him, licensing him for use in cartoons and feature films, selling overpriced statues of him to collectors, etc. But starting in 1999, they have to give half of the profits to the Siegels.

Superman logoLikewise, the Siegels are also free to exploit Superman. But they have some serious limitations on them, because of all the things they don’t own. If they were to produce and publish their own Superman comics, they couldn’t use Jimmy Olsen. Or Lex Luthor… or any of his classic villains. No Daily Planet. No kryptonite. Using superpowers which were added after Action #1… they might get away with that, but only after an ugly legal battle with DC, who’d be almost certain to sue them over it. I’d advise against it.

Oh, and they couldn’t put the name “Superman” on the cover. Or the familiar gem-shaped “S” logo. That’s because those are trademarks belonging to DC, and this copyright transfer doesn’t affect them. If any other publisher tried marketing their character as “the man of steel” (a registered trademark), DC’s lawyers would come down on them like a ton of bricks. So if the Siegels did it, the same thing would happen. The judge also ruled that the Siegels rights only extend to the U.S., and that DC’s international licenses stand as they are.

This means that - as a practical matter - the Siegels can’t do anything with Superman, and DC can do pretty much anything they want. (If DC were to turn him into a baby-raping sociopath, the Siegels could probably successfully sue them for damaging the character’s commercial value, but that’s not going to happen.) They just have to share the profits with the Siegels.

Women of Steal?

So the online detractors of the Siegels who shriek that “they’re only in it for the money”… are right. I don’t think Mrs. Siegel or her daughter have any interest in getting into the publishing business. They don’t have their own vision of Superman that they want to implement. They just want a cut of what DC is doing. And you know what? I think that’s just fine.

Personally, I think copyright terms are way too long. The old terms of 28 years with a 28-year renewal (if you’re still exploiting the property) were reasonable. I’ve even argued that copyrights should expire with the creator: Jerry’s daughter Laura didn’t create Superman, so why should she be entitled to control and profit from the character after her father died? My father’s law practice won’t keep writing checks for me after he dies, so why should her father’s work do that for her?

Superman vs. wife-beaterIn this case, there’s a good answer: Because her father was cheated. He didn’t get to profit from his creation while he was alive. If he had, his wife and his daughter would have inherited a small fortune when he died, instead of the little bit he was able to get out of DC. Copyright law is a bit broken, but given how it’s structured, letting the man’s elderly widow and his daughter start claiming some of the profits at this point is a simple matter of fairness. (If you want to bring this up again in another 40 years, when Jerry Siegel’s great grandchildren or whatever are making money off a character created by a man they never even knew, I’ll be happy to change my tune. But for now, I like the sound of this one.)

Man of Tomorrow

Speaking of the future, this story isn’t over. And the ending could turn out very badly for DC.

Remember Joe Shuster? And how his heirs weren’t eligible to reclaim his half of the copyright? About 10 years ago, Congress got involved again. Apparently someone convinced them that the requirements listed in the 1976 act for who could reclaim the copyrights were too restrictive, and when they extended copyright terms again in 1998 (to 95 years), they expanded the eligibility for reclaiming copyright to include more distant relatives. So when the 75-year copyright for Superman would have expired in 2013, Shuster’s heirs could do the same thing that Siegels did. And that would leave DC with no copyrights to Superman at all.

DC would still have the trademark rights, and nothing short of special legislation is going to take Jimmy Olsen and Lex Luthor away from them. But they’d be at the mercy of Laura Siegel Larson and the survivors of Joe Shuster for permission to use Superman, and in theory those heirs could demand that 100% of the profits be split between them, making it pointless for DC to continue using the character (unless they want to publish him at no profit just to keep the trademark licenses fresh). But the heirs wouldn’t be able to exploit the character themselves because of the trademark rights. This could end in a stalemate in which nobody can do anything with the character. Which is pretty damn unlikely, because I’m pretty sure everyone in the Siegel and Shuster families is familiar with the story about killing the goose that lays golden eggs. They’ll work something out… the only question is what. (My prediction is that DC will continue challenging all of this however they can in court, but end up with a cash buy-out of the heirs’ rights.)

In the meantime, the judge in this case has ordered both DC and the Siegels to negotiate a couple of unresolved issues: the ownership of any changes the DC has made to the character since the Siegel’s filed to reclaim their copyright, and how the copyright and trademark rights relate to each other (for example, the DC-controlled trademarks are based on copyrighted material the two parties now share). If they fail to reach a settlement on those points, it’ll go back to court. The court will settle the Superboy issue later. (The gist of that case is that the Siegels claim that Superboy is a separate character, with a separate copyright… which is theirs. And it is definitely not a coincidence that the name “Superboy” has not appeared in any DC comics lately.)

And What About Naomi?

There’s plenty of anxiety about what this bodes for the future of Superman, but this case also has fans nervous about the fate of other beloved characters. The good news (from that perspective) is that the case of Superman is relatively uncommon. Most of the superhero characters published by DC and Marvel were created “in house” by employees or commissioned by the publisher from freelancers, and in either situation the publisher has a pretty secure claim on the characters as “work for hire”. It’s the fact that Siegel and Shuster walked in the door of National Publications with a completed story and characters which they already owned, that gives their heirs the right to reclaim them.

Stan Lee, Jack Kirby, and Steve Ditko were all working for Marvel when they created most of the Marvel-U pantheon in the 1960s. The most notable exception is Captain America, whose real-world history is remarkably parallel to Superman’s, leading to the Joe Simon filing for his half of the character back. And again - perhaps not coincidentally - the original version of the character was recently killed off. But that’s another case for another day.

Marvel and creator-owned comics

Saturday, April 10th, 2004

Once upon a time, Marvel Comics had an imprint called Epic, which provided a place for creators to produce non-Marvel-Universe stories which they retained ownership of. Last year, Marvel announced they were bringing the imprint back, with a different spin. Not only would it publish new creator-owned material, but people were invited to submit proposals for Marvel-U stories, which would become Marvel property. But the creator-owned option was cancelled early on by Marvel execs, who didn’t want to publish material the company didn’t own outright. The whole Epic experiment got shut down completely within the year. But now Marvel is bringing back the very thing they axed first. Only this time It’s called Icon.

This new Icon imprint will publish creator-owned non-Marvel-Universe material, much like the original Epic did. The first books to come out from it will be Brian Bendis’ Powers and David Mack’s Kabuki, both snagged from Image. Bendis and Mack have both been doing a lot of work on Marvel-owned material in recent years, which points out the goal of Icon: giving star Marvel-friendly creators a chance to “do their own thing” without going to other publishers. So it probably won’t be a place for “unknowns” to get their stuff into print.

I’m curious what kind of deal Bendis and Mack are getting from Marvel for this. The creator-owned contract that Marvel (briefly) offered for Epic required the creator to give up a lot: Marvel would have exclusive rights to the series for several years (indefinitely if they kept it in print), Marvel would control the movie/game/etc rights and get 60% of the money from any deals, Marvel could even fire the creator/owner from actually producing the book and hire someone else to do it. (See my earlier article for all the gory details.) I can’t see someone like Bendis or Mack agreeing to those terms (certainly not with these titles), so Icon must be offering something closer to what publishers like DC offer. (I can’t imagine it being close to Image’s terms, which - as evidenced by how easily and quickly these two titles were moved to Icon - are pretty close to “no strings attached”.)

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.

Phantom Jack’s Epic escape

Friday, November 14th, 2003

The saga of Epic Comics - the imprint that Marvel Comics briefly revived and then shut down this year - has included some surprises, both big and small. One surprise - to fans and the creators alike - was the news that the four Epic series slated to launch in Febrary 2004 were instead going to be shoved into a single quarterly (if it survived past #1) anthology. An even bigger surprise came days later: that Phantom Jack had managed to get free of Epic, and was going to be published by Image. Writer Mike SanGiacomo explained that he was (understandably) upset at what was happening to his series, asked the folks at Marvel to cancel his contract, and they did. Which is nice, but they may not have had a choice.

First, a little background: When the recent incarnation of Epic was announced, it was going to publish both creator-owned and company-owned material. That’s how it had worked in its previous incarnation, and Marvel exec Bill Jemas wanted to give it another try. So when Marvel solicited proposals from a bunch of comics journalists as a test of their processes, and to get the imprint off to a decent start, SanGiacomo submitted an all-original idea, about a reporter who can turn invisible, but doesn’t user his powers to fight crime under a code name, in an invisible costume.

The legal specifics of the deal hadn’t been worked out yet, so SanGiacomo proceeded under a loose verbal agreement with Marvel. When Marvel’s board decreed that Marvel would not be publishing creator-owned material, he was given the option of selling his character to Marvel, in exchange for a little cash up front and a share of the profits if it were licenced for movies, TV, games, etc. He agreed. He signed the Work Made For Hire contract that granted ownership of Phantom Jack (as well as the story itself) to Marvel, and the New Character Agreement that spelled out what share he might get of the hypothetical box office profits. He continued working the series with his art team. The first issue was finished - script, art, coloring, lettering - when news of Marvel’s change in publishing plans broke.

Because Marvel owns outright anything covered by the WMFH contract, they have every right to publish them as they see fit, including to shoving them into a doomed anthology. They aren’t even obligated to publish the material they’ve purchased… though a failure to publish the first issues could lead to the creators objecting to the implication that the work they’d produced was not good enough for publication: a possible opening for a defamation or breach of contract suit. It’d be bad PR as well.

One interesting tidbit to surface in the message board discussions after the quarterly-anthology news broke was the fact that SanGiacomo had not yet been paid for his work. There was no implication that Marvel was planning to stiff him, but it put the status of his contract in a whole different light. It sounds to me like it was unenforceable.

For a contract to be binding requires three things: 1) an offer, 2) an acceptance, and 3) consideration. This last bit is a legal term meaning that something of value has to be exchanged between the two parties. This is why you’ll sometimes hear about someone selling a piece of land for a dollar (or in olden days, a peppercorn). That exchange establishes the sale as legally sound, instead of it just being a gift which the “giver” could revoke.

Which means that if Marvel never paid SanGiacomo anything, he could get the courts to declare the contract void. He didn’t need to ask Marvel to tear up the contract; he could tell them to.

(If their situation was the same, the other writers could theoretically do the same thing. But since their works were all based on Marvel-owned characters and/or situations, they would have difficulty taking those works to another publisher.)

Now, it’s possible that Marvel’s new Publisher did - as SanGiacomo’s report implies - give Phantom Jack back to his creator out of the goodness of his heart and/or for good public relations. But it could also be a matter of letting the writer do what he had the legal right to do.