I do my own income taxes, but beyond that I steer clear of tax law as much as possible. Do not ask me for tax law advice. Thank the maker that it rarely affects comics. Unfortunately, it sometimes does, and the result ain’t pretty. Laura Gjovaag’s “Bloggity-Blog-Blog-Blog” has the details of a case in which the IRS is essentially making up numbers that “prove” that Corner Comics of Seattle owes a ridiculous amount of money in taxes on its inventory of back issues. I don’t mind paying my share, I really don’t, but this is the sort of heavy-handed treatment and presumption of guilt over innocence that keeps “tax collector” on most people’s top 10 list of evil professions.

As Dirk Deppey points out in his ¡Journalista! blog, if the IRS can put the knife to Corner Comics, they could probably put your local purveyor of sequential art booklets out of business with the same calculus. Deppey suggests that a genuine trade association for comics retailers would provide some level of defence against this sort of thing. Such organisations do have to be careful to avoid running afoul of anti-trust and other regulations, but they’re certainly possible.

Speaking of Michael Sangiacomo (or “Mike SanGiacomo” as he’s known when writing comics rather than acting as a newpaper journalist), his latest “Journey Into Comics” column tells about a 12-year-old boy in Worthington OH (a suburb of Columbus) who’s facing possible expulsion from school over violent comics he drew. His school has a “zero tolerance” policy regarding violent statements. Note: “zero tolerance” should be pronounced the same as “zero intelligence”, because that’s what such policies really amount to. (That principle holds true whether it’s a policy about drugs, alcohol, weapons, etc. But I’ll stick to the free speech aspect here.)

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There’s no actual civil or criminal charge involved here. The police chose not to get involved, so it’s “just” a school policy matter. Still, the school is acting - as schools generally do, whether public or private - as a de facto sub-local government. The courts have ruled that students do not have the same level of First Amendment protection at school that people have elsewhere. This case is an example of that authority in action.

Sangiacomo’s headline “AND WHEN THEY CAME FOR COLUMBUS…I DID NOT CARE…AND WHEN THEY CAME FOR ME…?” (a reference to the famous parable by the Rev. Martin Neimöller, about how fascism can take over) is a little hyperbolic, but the point is a valid one. This is just a kid, in some ‘burb in Ohio. But if his rights to express himself are limited without anyone stepping in to defend them, it becomes easier for the next limitation to be imposed.

Despite what it says in the U.S. Constitution, free speech has never been regarded as absolute under U.S. law. There have always been limits placed on it, usually with some kind of appeal to common sense attached. The oft-quoted “yelling FIRE in a crowded theater” situation is one example. There’s by no means universal agreement on this point, but the majority opinion seems to be that threats against someone’s life or safety should not be protected speech. That makes sense.

But when “zero intelligence” standards are attached to that (or any other) notion, common sense is left on the doorstep. So you have people (especially students) disciplined for using cold medications containing small quantities of alcohol or mild narcotics, for bringing a brightly-colored squirt gun to school, or (in this case) for drawing cartoons in which he fantasizes about the death of a teacher or other authority figure. By no reasonable standard are these examples of substance abuse, weapons, or credible threats. No actual harm is done by any of these. The rules which criminalise them lack common sense.

The only harm done when a kid violates a “zero tolerance” policy is to undermine the authority of the letter of the law. I would argue that the spirit of the law is more important. After all, the letter of the supreme law of the land says simply that the government shall pass no law… abridging the freedom of speech. But common sense tells us that there have to be exceptions. Common sense should also tell us that those exceptions need exceptions as well.

See the Associated Press story for info about the case.

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.

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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.

A new law promoted as a way to keep porn magazines and videos out of sight of children went on the books today in the state of Michigan. Unfortunately, like most laws of this sort, it has potentially much broader consequences. The wording of the law could be applied to mainstream women’s and men’s magazines, R-rated movies, romance novels, clinical sex manuals, CDs… and comic books. Comics aren’t mentioned by name, but whether you call them magazines, books, or even pamphlets, they are (literally) covered by this law.

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The law, known during its time in the legislature as H.B. 4360, requires that items containing “sexually explicit matter” have the bottom 2/3 of their covers hidden, or that they be placed in an “adults only” part of the store with restricted access. Store owners or managers who fail to do this could spend 93 days in jail and pay a $5,000 fine. Actually letting a minor examine the material is punishable by two years in prison and a $10,000 fine. (There are exceptions for parents, physicians, and - under some circumstances - librarians and educators.) It was passed without a single “nay” vote from either party, and Governor Jennifer Granholm, a Democrat who came to political prominence through her efforts as state Attorney General to protect children from sex-related dangers on the internet, signed it.

The law defines “sexually explicit matter” to include (among other things) “a book, magazine, or pamphlet that contains… a picture, photograph, drawing, [etc.] … that depicts nudity, sexual excitement, erotic fondling, sexual intercourse, or sadomasochistic abuse…” (emphasis added). Note that the nudity doesn’t need to be obscene, lewd, or provocative. Written materials have to contain “explicit and detailed” descriptions to be covered by this law, and written descriptions of mere nudity aren’t affected. But drawings don’t have that qualifier on them; all they have to do is “depict”, and “nudity” of any kind is sufficient. The thinly veiled sex scene in a recent issue of The Avengers could possibly qualify for this, Doc Manhattan paraded all through Watchmen fully naked, and certainly any number of Vertigo books have “depicted nudity”. Under the terms of this law, they should be placed in adults-only sections of the store, or kept behind the counter with 2/3-height boards over the covers.

One of the fundamental contradictions of this law is that it fails to take into account the adage that “you can’t judge a book by its cover”. It screws this around in the opposite direction, by requiring the covers to be shielded based on the (not visible) contents of the book. For example, a hardcore porn magazine whose cover showed only a smiling, fully-clothed photograph of one of the models, would have to be blocked from the view of children. Meanwhile, a more provocative image on the cover of Maxim would be unaffected, since the material inside skirts just below the thresholds of this law. An amendment to change the focus of the bill from the content to what was apparent from the actual covers, was defeated.

This places an extra burden on shop owners, especially comics shop owners, who get a big batch of new mags to put on the shelves every week. They can’t just look at the covers to see what books they need to cover up; they need to check the contents of each one. And unlike the rules against selling explicit material to minors - which clerks could conceivably enforce as they ring up purchases, by paying special attention to the selections of children and teens, but just ringing up everything purchased by all the middle-aged men - this cover-covering assessment has to be done before the books are shelved. Or not shelved.

That’s the most likely outcome of all this. By making extra work for retailers, and requiring them to actually hide merchandise from customers (not just prevent children from looking through it), it becomes decreasingly profitable to carry anything with nudity in it. Which is, of course, the real objective of the law. If they were merely concerned about kids being casually exposed to sexual images - which is what the sponsors and the lobbyists behind it claim, and a reasonable goal - they would’ve limited the focus of the law to the covers.

Heck, most porn publishers already keep the front covers semi-nude at most (Playboy routinely looks more chaste than Cosmo), and the rest rarely get stocked outside of adults-only retailers. This “shield the kids’ eyes” rationale was merely an excuse to further restrict the sale of magazines, videos, etc. based on their content. And it gives yet another tool for prosecutors and citizen censors to use against freedom of the press for comics.

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.

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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.