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…

It’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

Joe 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.

More 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.

Likewise, 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?

In 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.

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”.)

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.

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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.

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.

NOTE: Marvel is no longer accepting submissions for Epic Comics. See here for more information.

A lot of aspiring comics creators are getting their first encounter with the legal side of (possibly) working in the industry as Marvel is accepting submissions for the resurrected Epic Comics imprint. In addition to writing 22 pages of script or penciling 5 pages of sequential-art storytelling, submitters have to send in some legal paperwork. To help others understand these contracts, and make an informed decision about whether to sign them, I’ve done “translations” of them from legalese into standard English. In this article, I’m covering the Idea Submission Form and the Work Made For Hire Contract.

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The most critical document to sign and include is the Idea Submission Form. This document is essentially a “release” form for the writer to sign before submitting his proposal to Marvel for consideration. They need this to protect themselves from frivolous lawsuits over the material you’re sending them. They want a copy of this attached to every script you submit, otherwise they’ll have to throw it out. Here’s what it means, paragraph by paragrah:

1. You’re not the only person thinking up this kind of stuff. Marvel is in the business of coming up with ideas for comics and it’s entirely possible that they’ve already come up with something similar to what you’re proposing, or they might come up with (or get a proposal suggesting) something similar in the future.

2. If so, you’re not entitled to any payment for it, because it isn’t your proposal they’re using.

3. They’re not sending your stuff back to you. Always send copies, never originals.

4. Don’t expect anything more than a “yes” or a “no”. If you haven’t heard anything yet, it’s possible your rejection letter got lost in the mail, but they probably just haven’t gotten to it yet. If they say “no”, they don’t have to say why. If they say “yes”… well, who cares why? {smile}

5. You can’t submit anything that’s owned (even just a part) by someone else. It has to be composed entirely of Marvel’s property (stuff from the Marvel U), your own property (an original story and/or characters), and/or public property (such as Tom Sawyer or King Arthur).

6. Give your real name. Maybe they’ll let you publish under a pen-name, but they still need to know who you really are. (They knew who the “anonymous” writer “X” was.) And if word were to come out that Epic’s new gay porn series XXX-Men was being written by you, Donald Wildmon, and illustrated by your buddy Gary Glenn, that would be the American Fascist Association’s problem, not Marvel’s. If it were true, that is.

7. Marvel lives in the U.S. of A. and you’re limited to the rights that U.S. trademark and copyright laws give you. (Don’t blame Marvel for this; the government of your country agreed to this when they signed the Berne Convention and/or the Universal Copyright Convention. Fortunately those treaties also set some good minimum standards for copyright protection - which forced the U.S. to improve its laws - so it’s mostly the details that vary from nation to nation.)

8. Don’t even try calling or pitching to Marvel in person at a con.

9. This stuff is way too simple to be worth a trial. If there’s a problem, it’s going straight to arbitration*, and Marvel’s too busy to leave the Big Apple, so it’ll be someone in NYC. Confidential arbitration is an option (but only people with something to hide ask for that). In any case, you’re not getting more than $5000, and if you wait more than 6 months to complain, forget about it.
* Arbitration is a bit like going to “Judge Judy” but without the theatrics and with (hopefully) more intelligent participants: You tell your side, Marvel tells their side, and the arbitrator decides what to do about it.

10. If your proposal is a superheroic take on “Romeo and Juliet”, Marvel can do another superheroic take on “Romeo and Juliet” without owing you anything. They have as much right to do Shakespeare as you do.

While it’s conceivable that Marvel is going “steal your idea”, that sort of thing is unlikely, and 99% of such lawsuits are jokes that just waste everyone’s time. So I can’t blame Marvel for requiring you to sign this document, and you’re really not giving up anything by doing so, except the right to make a doofus of yourself by joining that 99%. Ideas are cheap and plentiful; they grow like dandelions in June. And even if Marvel did “steal your idea”, unless they also stole your plot or your dialog or your characters, they didn’t steal anything you really owned, because you can’t copyright or own a mere idea. In other words, stealing ideas may be immoral and unethical and Just Plain Wrong, but it’s legal.

The next-most-important document is the Work Made For Hire Contract. While you might get away with leaving this out when you send in your submission, you’ll have to sign it before they’ll publish your work. This applies to “creator owned” submissions as well; Marvel will not publish those unless you sign over ownership to them, making those WMFH as well. It has to be signed by “you”, the writer making the proposal, and it’s signed by Marvel when/if they accept that proposal. At that point, it goes into effect. It establishes the terms under which you and your team will do this work for Marvel.

1. You have to actually do the work. It has to be good enough for publication and it has to be done on time. Marvel can fire you or you can quit for any reason - including “stupid” ones - but if so, either one of you has to give the other a month’s notice. So if you’re doing a monthly, that effectively means you have to finish the issue you’re working on, even after they’ve fired you or after you tell them “I quit.” (If they fire you for a “good” reason based on the contract - like failing to live up to this paragraph, or paragraph 7 - of if you quit for a “good” reason - like they fail to pay you - the 30-day-notice may not apply.) By the way, if you quit or get fired, Marvel can keep the series going without you, because…

2.a. Whatever you create for Marvel becomes their property.

2.b. This paragraph tries to establish that whatever you create for Marvel never was your property, because you created it as “work made for hire” (aka WMFH). Exhibit A spells this concept out more explicitly, but the gist of WMFH is that the legal “creator” of the work is the company, and you’re just one of the cogs in the creative machinery of that company, with no ownership of the work you do for them. Legally, they could even deny that you had anything to do with it (the “moral rights” bit). In case this paragraph doesn’t stand up in court, Marvel will still enforce the previous paragraph instead, which is the next best thing for them. There’s an exception for material you create on your own and then try to sell as a finished product to Marvel, but for a proposal like this, once Marvel tells you “yeah, go ahead and create that book for us” and the check clears, whatever you create for it is - and always has been, and always will be - theirs.

2.c. A “natural person” is any individual, regardless of whether you’re a clone, android, temporal anomaly, spawn of the devil, etc. The alternative is that you’re a legal entity, such as a partnership or corporation (which our legal system treats as if it were a person, with civil rights and so on). If you’re creating something for Marvel, and doing it collectively as a studio or whatever, you have to apply the terms from the previous two paragraphs to your employees and subcontractors. So you can’t try to trick Marvel out of ownership by putting a disposable shell company between the actual creators and the publisher. Exhibit A appears to be one of Marvel’s standard tools for accomplishing this.

2.d. Once Marvel buys it, you can’t take any part of this script and re-use it elsewhere. If they had rejected your Squadron Supreme story, you could rework it into a JLA story and sell it to DC, or publish it yourself with your own JLA knock-offs. But they bought it, so you can’t. This includes any new characters you introduced. It especially includes any existing Marvel characters or other bits of MU continuity you included. If Marvel pays you for it, but then decides not to publish it… well, you got the Fortune (such as it is) - but not the Fame - for your brilliant story. Tough.

2.e. Since Marvel owns it, they can do what they want with it. That doesn’t mean they will make changes, but it means they can. You have no say about whether it gets used for a movie or game or novel or Underoos, or what happens with it if it does, because it’s not yours.

2.f. And don’t expect to get paid for any other use of your material, either. (See paragraph 4.a for more about this.) In case this hasn’t sunk in yet: It’s Marvel’s property.

2.g. You’re giving Marvel the right to use your name and maybe some basic info about you to promote this book, but not for anything else. A no-brainer clause for you, but if you were, say, King Fahd of Saudia Arabia or AOL/TW CEO Richard Parsons or anyone with a professional reputation to uphold, you might not want to agree to this. Practically speaking, this means putting your name on the cover, in the inside credits, and in the solicitation, and maybe a press release to the comics news sites, explaining that you’re a 40-year-old comics-and-collectibles-shop owner in Cornfield, Nebraska. If you’re a 19-year-old hottie they might include a photo in the press release to get readers’ attention.

3. For the record: You have to get your work to Epic; they aren’t going to come get it.

4.a. Marvel will pay you $500 for all of this. They’ll also pay you the amount is stated in the Packaging contract, which will spell out the per-issue payments, and the bonuses based on sales. But that ain’t in writing here, so it hasn’t been locked in until you get the Packaging contract. They’ve also talked vaguely about some kind of bonus for anything that gets licenced to other media, and that would have to be in that other contract as well; if it’s not, figure that you’re not getting it. (And understand in any case that if your Dr. Obscure revival inspires someone in Hollywood to make a movie about him, it’s still just Marvel’s character they’re licencing, not “your” story; they’ll write their own screenplay, thanks. You won’t get any screen credit, and probably not a cent, even if some of your ideas show up on screen. Just ask Frank Miller or Chris Claremont, whose original characters and stories were used in the movies DareDevil and X2.)

4.b. Marvel can register their legal ownership of what you create, and you’re going to help them.

4.c. The only possible exception are new characters, which are defined and covered by a document Marvel calls a “New Character agreement”. Note: Characters related to existing Marvel characters (such as a new team-member for the X-Men, or Iron Man’s cousin Iron Girl) do not qualify as “new characters” for these purposes; it has to be someone all-new, presumably capable of supporting their own movie deal. If your story uses any of your own characters, especially ones that you care about, don’t make any assumptions about what that agreement will say; ask to read it before you sign this document. Reading betweent he lines, it sounds like it’ll give you a percentage for any licencing deals made for the character, but that’s just imprecise guesswork. Also, see my comments about paragraph 13.a.

4.d. Marvel will pay you directly. If you ask to have the money paid to someone else, you’re still bound by the contract, so you can’t weasel out of it with that trick either.

5. You can’t give Marvel anything that’s owned (even just a part) by someone else. It has to be composed entirely of Marvel’s property (stuff from the Marvel U), your own property (an original story and/or characters), and/or public property (such as Tom Sawyer or King Arthur). So if there’s a problem with the legal rights to the content down the road, it’s your fault.

6. Standard butt-covering clause. This is where Marvel denies any liability for anything else that goes wrong because of you. It’s your fault. Got it?

7. You might learn stuff about Marvel that they don’t want people to know, such as Bill Jemas’ cell-phone number, their plans to reveal that Ultimate Spidey is a mutant clone of Aunt May, an impending purchase by Tokyopop, or the fact that their letterers are locked in a closet and have to work with quill pens and the blood of any fanboys who show up wanting to see “the bullpen”. Leaking this info can get you fired and even sued for breach of contract. You have to keep your mouth shut even after you stop working for them, taking the sad plight of those letterers to your grave. (No one would care about the blood-drained fanboys.)

8. You’ll do whatever Marvel requires you to do to keep your… I mean Marvel’s legal property from falling into the hands of other people. Including yours.

9. If you have anything important to say to Marvel about your professional relationship (such as “I quit” or “I’m going to sue you for all you’re worth”), say it to the right people. They promise to do the same for you.

10. Marvel can sell you (at least the part of you that you’ve signed away with this contract) and your work to someone else. So if Archie Comics wants to publish your Punisher mini, and Marvel agrees, you’re writing for Archie now. (Hey, don’t laugh. They did an actual Archie/Punisher crossover several years ago.)

11. “We may be sleeping together, but we’re not married. So don’t try to sign any contracts on our behalf, and don’t even think about asking for the house or custody of the kids when we split up.”

12. You may be doing work-made-for-hire, but that doesn’t make you a legal employee. You’re self-employed, and personally responsible for everything that an actual employer would take care of, like benefits or taxes.

13.a. This contract is binding. Nothing else Marvel has promised (or that you’ve promised them) matters because it’s not included here. The per-issue compensation and possible bonuses in the Packaging contract mentioned in paragraph 4.a are the only exception. Note: They didn’t allow here for the “new character policy” mentioned in paragraph 4.c. I’m not sure what that indicates, but it could mean that it’s just a policy (subject to change at Marvel’s discretion) and not a binding contractural agreement. So don’t assume you’ll get any actual legal rights from it.

13.b. You and Marvel both need to sign a new contract to change any of this.

13.c. A standard “bathwater” provision to prevent any specific problem with this contract from wrecking the whole thing. If the Supreme Court says Marvel can’t do what they wrote in the second half of the third setence of paragraph 16.q the rest of 16.q still stands, along with the rest of the contract.

13.d. When Sony buys Marvel, you’ll be working for them. When you die from joy at seeing your by-line in a Marvel comic, your spouse and kids (who are we kidding? make that “your parents”) will be entitled to… well, whatever this contract entitles you to.

14. Marvel lives in the Big Apple and they’re not about to come out to Cornfield, Nebraska for a trial. Besides, they know how the New York courts will interpret the law and they’d rather take their chances with that, instead of letting some yahoo in California or Red China or Andorra apply their kooky local laws to it.

Exhibit A: This document appears to be what you’d use if Marvel buys your proposal and you need to assemble a “team” to produce the goods. Unless that happens, ignore this part of the PDF file. Because you (the writer who proposed it) are the one Marvel is paying, you’re responsible for getting the artists working for you to agree that this is “work made for hire” like in paragraph 2.b, and you all agree not to challenge that. In fact, it says that if anyone involved did have any problem with that, they wouldn’t even be working on this project… which, between you and me, is an important point for you to consider. This section uses the same kind of terminology you’d use for cut-to-order lumber or custom auto parts, to reinforce the notion that you’re not really creating anything; you’re supplying mere components under Marvel’s supervision, for their editorial staff to use to create a copyright-worthy work of literature/art.

Exhibit B: If you want your checks mailed directly to your silver-haired mother back in Smallville, they need it in writing. Use this form.

Most of this contract is about limiting your rights, with a lot less language dedicated to limiting Marvel’s. This is because Marvel wrote it, and they figure you need them more than they need you; there are more writers out there than there are publishers with rights to the Marvel Universe. It does give you some specific rights, which are good to know. Go through each item and ask yourself if this is something you’re willing to give up. If you get to the end and the answer is still “yes”, then send in your pitch. And if the terms of the contract mentioned in paragraph 4.a turn out to be acceptable, then go for it!

If you can’t agree to this contract, you can take the basic story (without Marvel elements) elsewhere. I’ve never seen the WMFH contracts Marvel gives to creators working for Marvel proper (i.e. not Epic), but (aside from the pay scale) I doubt they’re substantially better, so I wouldn’t bother trying to pitch to those editors for better terms. DC’s WMFH contracts are probably about the same. That’s the price of getting to play with someone else’s toys. In any case, if you still have your heart set on using Marvel’s characters, and think you have real talent, you may be better off “breaking in” the traditional way, by getting your work in print through other routes (such as self-publishing with your own characters) and negotiating a deal with Marvel from that position, which might give you a little better leverage. But probably not.

If you want more information about Epic Comics, the legal aspects of submitting to them, and general advice about how to do it, see my Understanding Epic Comics site.