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VS.! - Creators' Rights

Written by Jude Terror on Friday, June 22 2012 and posted in Features
VS.! - Creators' Rights

GHERU returns to VS.! to face newcomer Xaraan in a battle to the death over the touchy subject of creators' rights!

Hello ladies and gentlemen, and also readers of this column! I'm the host with the most, pound for pound that is, Jude Terror, and this is VS.!

This week we had planned to do a column exploring the DCnU, but of the two participants I really, really wanted for the column (it is going to be awesome, trust me), one of them was just too busy to promise me the answers by Friday morning, so we're gonna do that next week instead. Luckily, my buddies GHERU and Xaraan were willing to jump in with little notice and give me a column for this week. For that generous contribution, and for pulling my fat out of the fire, I will thank them by making fun of them in these introductions.

GHERU, whose name must always, always be spelled in all capital letters, is a lovable curmudgeon who we last saw on the Avengers vs. X-Men episode of VS.!, supporting the right side, the X-Men. If only his people had supported the right side when they decided to kill Jesus. GHERU is also a father, the announcement of which consisted of an Outhouse private message to his friends telling them that he had gotten laid.

GHERU: Hello, Jude, its nice to see that you reward correctness and leave the wrong in the gutter where they belong.  It was nice to work with Xaraan on this project, mainly because it was fun to see all the traffic accidents his shiny bald head caused as the sun reflected off of it.

Xaraan is a shiny-headed writer and photographer who once had a meme about his crotch go viral on the internet, something which haunts him to this day. Xaraan's most notable accomplishment is somehow convincing another Outhouser, Alima, to be his girlfriend. The pair will be two of the reporters representing The Outhouse at San Diego Comic Con.

Xaraan: It's nice to be here, you fat fuck. Your most notable accomplishment is leaving enough food at the dinner table to keep your wife and kids from starving every night.

Creator rights (and corporate rights) has been an ongoing debate in comics for decades, with many fans feeling that the big publishers like Marvel and DC have not given the creators on whose backs the companies were built everything they deserve, while others feel that work for hire obligations end when a paycheck is cut. We'll try to get to the bottom of this in this week's VS.!, and then you can share your thoughts on the matter in the comments section below or on the forums.

The game is simple. I make a statement, which I may or may not necessarily believe. Our guests tell us whether they think the statement is true or false, and why. GHERU will go first for the first three statements, and then we'll SWITCH!!! midway through.

Are you ready? Let's go!

1. Jack Kirby knew what he was doing when he worked at Marvel in the sixties, and his family does not deserve any additional money for the Marvel characters he created.

GHERU: No. It doesn't even matter if he knew what he was doing or not. Contract law is not a new thing; he was a grown damn man who signed a document binding him and his employer into an agreement. I have read at The Outhouse, Bleeding Cool, and various other sites that "Kirby was a bad business man" or variations thereof – so what? I'm a horrible plumber, so you know what I do? I hire someone who knows what they are doing to look out for my plumbing interests. Kirby, not to generalize here, lived in New York; I have a hard time believing that he couldn't find a lawyer or business manager.

All that is just what he deserves. As for his family – nothing.  Just imagine what would happen to any contract from any period if we allowed family to come back and say "my daddy signed a legal and binding contract 50 years ago, and while you were paying him he created Pong.  Pay me!" The creator of Peter Pan, Barrie Briggs, popularized the name Wendy. Does the Briggs family deserve payment from Dave Thomas/Wendy's estate? No.  Why? Because that would be stupid.  Same goes for the family of the guy who created the tape deck, CD, DVD, power steering, flip-flops, and millions of inventions created by people who were being paid to create things for their employers.  Where does it end? Children, grandchildren, great grandchildren...

I feel bad that Kirby didn't make what he deserved to make while alive and employed by Marvel, and he was a talented creator, but we need to stop pretending that he didn't have any other option but to sign on the dotted line.

Verdict: True

Xaraan: True (enough anyways).  Hard to say he "knew what he was doing", as I think we've all gotten in over our heads on a contract, though now it tends to be terms and conditions we pay little attention to, but I think he knew he was doing 'work for hire'.  Just because the work he did ended up being immensely successful, I don't think he or his family can suddenly say, "we deserve more pay for that work."  If it failed, was he or the family willing to pay to bail a corporation out of the gutter and refinance a second chance?

Verdict: True

Consensus: Yes

2. Creators deserve some degree of ownership of their characters, even if they were created work for hire.

GHERU: Yeah, sure, whatever, as long as that degree of ownership doesn't translate into creative control.  If only because, if Liefeld had his way, Cable, Deadpool, and Shatterstar would never have come close to being interesting.  Marvel and DC can't let creators take their characters with them when they leave employment.  That said, some cash here and there from toys and movie sales makes sense.  They'll just raise the price of comics again to compensate.

Verdict: True

Xaraan: False(ish) I think that is up to the contract phase.  If I am a nobody (and I am) and marvel hires me to write a Spider-Man story and I create a new bad guy that everyone loves and becomes part of the next movie, and millions of toys are made, I can't suddenly complain that I deserve more.  Well I can, but it doesn't mean I should get what I want.  Sure, I think a good company should always reward the employees that help them make the biggest profits, but that doesn't mean I'd expect ownership to be given away.  That's how companies like DC and Marvel exist and why they are around to offer me work in the first place.

Now, if I am already somewhat well-known, then perhaps I can ask for more in the contract including partial ownership of new creations.  I know that my name will draw fans and sell books and the company knows I will not only sell books but put out a quality product as well, so it may be smart business for them to make that sort of deal with a creator at that point instead of walking away with nothing.

Verdict: False

Consensus: No

3. People who do work for hire on a creator owned property (such as Neil Gaiman and Spawn) should have all the rights to what they create for that book, even if the creations are derived from the original property.

GHERU: No. See my answer to #1.  It is rather douchey for someone like Todd McFarlane, who helped to found Image based on creators' rights to what they created as work for hire, to screw over the creators of Spawn characters so quickly, but if Gaiman, Moore, Sims, and Miller were work for hire, they should have known better.  It's that whole contract law thing.

I wanted Gaiman to get the rights, but that's mainly because McFarlane and Erik Larson are huge douchebags about it and refuse to see how what McFarlane did with Angela and Medieval Spawn is the same thing Marvel and DC were doing that caused them to leave in the first place: marketing and making money off other creator's work without proper compensation. Not only that, but while researching this answer I found out that, in the case of Gaiman, there was no contract, so not only did McFarlane try and back-out of his morals, but he learned nothing from Marvel on how to best screw creators.

Verdict: False

Xaraan: False.  Again I want to qualify that though.  First of all, Gaiman is one of my favorite writers (books and comics), so part of me thinks he should get whatever he wants.  But if I take his name out of the example and just look at it plainly I'd have to return to my "what was in the contract?" answer.  If it was completely work for hire, then I think he gives up those rights.  If his character in Spawn appeared, maybe was used in an arc or two later, and life went on, would he have cared?  Was this a character he knew might be big and was willfully giving it up or conned into believing he would have ownership, or was it an issue because movies, cartoons and toys were starting to come out from it and he saw money being made he didn't anticipate?  I think we've all known for years that comics lead to these other things. This wasn't back in the prehistoric comicbook era. This was right in the prime when the money was flowing, McFarlane toys were being made, movie rights were being sold left and right, and new companies were being born.  Due to me not being in on the specifics or behind the scenes, I can't comment any further than just going off this instance as little more as an example, but if you don't tear it apart for that, it works for an example.

I've both worked for myself in artistic fields (writing, photography) and for large corporations, so I get both sides of this discussion.  I understand that when I make certain decisions to do work for hire for someone else I wash my hands of what I am doing and realize they are paying me for what I am giving them.  If there are rights I want to retain, I make that completely clear ahead of time and it's part of the contract.

Verdict: False

Consensus: True


4. It is possible to be successful in comics without ever doing work for hire.

Xaraan: True.  It's possible, but not as likely.  I don't think doing work for hire is a bad thing either.  Someone can dream about creating their own book that grows into something bigger than many believed possible when looking at that first issue (like Walking Dead) and can also dream about working on a beloved character like Superman, Spider-Man, Batman, etc.  Obviously, those books have an already existing fanbase, and, if your name grows because of them it, it can only feed your own work on smaller or independent books.  Not to mention life can be a little easier in the real world with a steady paycheck that can come with doing work-for-hire.

Verdict: True

 True. Sixth Gun, Jinx, Scott Pilgrim, and American Vampire are testimonies to the fact that you can do well on the independent circuit.  On the other hand, the last 40% of any Previews Magazine comics' section shows that these are the exceptions, not the rule.  That is not to say it's easy with work-for-hire, because first you have to get hired, and without the independent credentials, that is not as easy as some Irish comic book store employees want to believe.  It is the cream of the independent crop, the 1% if you will, that become the "architects" of main stream comic book universes.  The other 99%? Well, join the club.

Verdict: True

Consensus: Yes

5. It is unfair to hold creators to the contracts they signed in the distant past when industry paradigms have changed to allow for larger-scale monetization of properties.

Xaraan: False.  Unanticipated success doesn't outweigh the fact that you are not the one fronting the risk to put out a product on a large scale.  Although I have no problem with those first creators going to court to question terms of contracts signed in another day and age - that is what the courts are for - it doesn't mean that because a new media gets invented for a character or work to make money that it scraps a contract.

The only argument I have with myself on this is digital media.  I think that, if a story is being published digitally, it is still being 'published' and if someone's contract says they get residuals for published work as time goes on, then they should continue to get paid.  That 'new media' not changing the intent of a contract swings both ways, it works against companies trying to take advantage of a change as well.  But in the end there can be so many variables when a large amount of time passes with technology that I don't think it frivolous at all when something needs to go to the courts for it.

Verdict: False

 False. As I said earlier, it sucks that so many creators didn't get the credit / money / rights / or whatever that current creators do, but that's life, and it sucks.

Whenever this conversation comes up there is something that people seem to forget: the creators that the internet loves to fellate were paid for their work, and they didn't die of starvation or illness while employed.  Fine, Moore got screwed by the trade clause in Watchmen.

How did he get screwed? DC keeps publishing the book so the rights don't revert to Moore.

Why does DC keep publishing the book? IT MAKES THEM MONEY!

Why does it make them money? It's a damn good book and people still want to buy it.  Oh, and Moore is still being paid every time someone buys a copy.

One more thing, it can be argued that the "larger-scale monetization of properties" was created because Watchmen was the real birth of the trade market, a market that Moore continues to benefit from today with his creator owned work selling well in that format (based on the reputation he built doing work-for-hire).

He didn't take the risk, and neither did the thousands of other creators we've never heard of.  They sold their talents to make themselves money and tell a story.  I'm not weeping for the creators that are mad their books were so good that people want to keep buying them.

Verdict: False

Consensus: Yes

6. The Copyright Term Extension Act of 1976 and similar laws that extend the length of copyright have effectively killed the public domain.

Xaraan: True?  I mean, didn't the copyrights continue as long as work was being published plus 75 years anyways?  So it added more years to the 75. Was anyone expecting Spider-Man to end up in the public domain anyway?  Maybe I grew up in an age where it made me think this way, but I don't really expect 'public domain'.  If a work wasn't sold to a company or created for a company, then I think a family should retain ownership of it.  That might not be how it works necessarily, but if I create Fox Trot and keep working at it on my own, build my own little business from it, keep my own rights, then that should pass to my family just like everything else I own and not be owned by the public after a certain amount of time.

Verdict: True

True. I guess. I dunno. Alan Moore seems to be doing alright with Public Domain, but the statement sounds reasonable and I don't have the interest to do all that much research into the subject matter.  But anyone who thought Mickey, Superman, or Wolverine were ever going to hit public domain is a bright eyed and naive fool

Verdict: True

Consensus: Yes

Final Score: 5/6

Looks like our guests are mostly in agreement. What about you? How do you feel about this controversial topic? Won't you join us in the forums or post your thoughts in the comments section below?

Written or Contributed by: Jude Terror

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About the Author - Jude Terror

Jude Terror is the Webmaster Supreme of The Outhouse and a sarcastic ace reporter dedicated to delivering irreverent comics and entertainment news to The Outhouse's dozens of loyal readers. Driven by a quest for vengeance, Jude Terror taught himself to program and joined The Outhouse. He instantly began working toward his goal of forcing the internet comics community to take itself less seriously and failing miserably. A certified trash eater ruining the pristine field of comics journalism with his sarcasm and goofiness, Jude Terror is secretly friendly and congenial, so if you've got a complaint, why not just bring it up to him instead of subtweeting like a jackass, jackass? You can find him on Twitter or try your luck with an email, but keep in mind that he is notoriously unreliable and may not get back to you right away. Unless you want to send him free stuff, in which case he'll get back to you immediately.

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