By Todd Allen

Jim Shooter is a pretty polarizing figure.  Love him or hate him, he was a long-serving Editor-in-Chief at Marvel and he’s one of the few people not currently working at Marvel that’s really qualified to way in on what Marvel’s attitude’s towards artist selling sketches might be.

The whole piece is well worth reading, but Shooter offers two especially  interesting nuggets.

First, a tale of how licensing violations were handled when he was at Marvel:

While I was at Marvel, several times when someone violated our trademarks, I convinced the upstairs bosses to give the infringer, if he or she wasn’t truly evil, a retroactive license for a dollar.  Our marks were protected, they weren’t hurt, all was well.

The best known of those instances was when Dave Sim did a parody of Wolverine in an issue of Cerebus—which sold so well that he did it for another three issues. Parody is protected. Once is okay.  Four times constitutes infringement. But Sim wasn’t an evil guy. We liked him. We intended to do business with him.  So we handled it reasonably, I think.

The difference here, it seems to me, is this: When litigation is going on everything done or said by either side may and likely will be forged into a weapon for the other side. Being generous might be seen as a tacit admission that the other side has a point.

Then a little bit of what to expect, based on his recollections of Disney:

Selling sketches of trademarked characters at conventions and elsewhere…now there’s an interesting situation. Collectively, a vast amount of money must be made that way. To my knowledge, the publishers haven’t ever taken notice. But, I guarantee, it’s on the radar now.

One person said that as long as it’s a private transaction between an artist and a collector, no harm no foul. To that person, I’d suggest setting up a booth at the San Diego Comic Con and selling sketches of Mickey, Donald and Goofy. See what happens. Disney once succeeded in preventing Carl Barks from selling paintings of Uncle Scrooge and fellow Ducks, though later, I think, they worked out a license deal. And Disney owns Marvel now. Hmm….

I think the business of selling sketches is just about to blow up like Krakatoa.

Which is also to say, the lawyers have probably taken notice of this and Disney is well known for very aggressively defending its trademarks (which you have to do if you want to keep your trademarks).  Quesada and Buckley have said they’re not looking to have a new policy, but I can sure see where Shooter’s coming from on this one.


  1. The idea of a selling a retroactive license for a dollar was an interesting one. I have always wondered about seeing all those popular comic characters being sketched or “interpreted” by all the great talent in Artist’s Alley and what the legality of it was. Now it’s a little more clear.

    I am preparing to appear at Toronto Comicon in March and am EXTREMELY interested to talk to my fellow Artist’s Alley denizens to hear THEIR take on all this hullabaloo. Are there any artists out there reading this with an opinon on how this msy affect them?

  2. I really wish Jim Shooter had any credibility left at this point, because I’d love his frankness on these matters if I could believe him.

  3. I honestly think it comes down to a one off (drawing Batman and Catwoman in someone’s private sketch book) and making even limited prints of that same sketch available.

    Until now limited prints were ignored or it was glossed over but I have a feeling that is about to change. That has always been a bit of a grey area that has been in favor of the artist.

    My concern is that this is going to tip too far the other way and artists will have a small revenue stream totally cut off unless they are doing their own original characters.

  4. Agree with Jason. I wasn’t aware that Shooter’s reliability regarding issues of Marvel’s IP was such that his opinions were worth quoting or citing.

  5. People need to get past the Shooter hate. Most of it is based on some hard decisions he had to make when he took over as EIC of Marvel. Before Shooter, creators in general had zero rights, except for a handful of “writer/editors.” These hybrid entities had no copyright ownership, but they did wield a lot of power at Marvel because there was no real editorial structure. When Shooter took over, it was at a time when the company was in dire need of structure because books were so shipping so late and the breadth of content was getting rather unwieldy. The people above Shooter also wanted the “writer/editor” beast to be killed, so Shooter was put in the unenviable position of fighting the beast in public and imposing structure on what had been a pretty fly-by-the-seat-of-their-pants operation. It created some very bitter people who were losing control of their kingdoms in deference to the larger kingdom that was needed if Marvel was to get on track and grow. Shooter also had to deal with some freelancers who felt that their vision for the characters owned by Marvel should supersede Marvel’s vision for the properties. He had to use editorial fiat on occasion to protect his employer’s property (even while privately acknowledging that said properties were created by people the company had treated unfairly).

    Plus, there are those in the Kirby camp that blame Shooter for the Art Return Fiasco. For the record, Shooter wanted Kirby treated equally with other artists when it came to art returns (and internally he was also a champion of Kirby getting some serious back pay). But he fought that battle with the corporate brass and lost, and instead became the public face of “Marvel screwing Kirby.”

    Ironically, when the owners of Marvel went to screw Shooter, everybody cheered. Very sad that he could not be afforded the same moral support that everyone else had enjoyed. At least Tom DeFalco was not painted as a villain for what the corporate entity did to Shooter; that would have been as wrong as Shooter being cast in the villain role.

    So yes, Shooter’s input on creators’ rights should hold a lot of weight. He was a champion of those rights; he was unfortunately in the position of having to do his fighting behind closed doors and could not take a bow for what he was trying to accomplish. And he did accomplish a lot: he fought for and won creators’ royalty payments – including editors’ royalties, he was able to get the art returns machine rolling, he created Epic as an imprint for those tales that freelancers wanted to tell that did not fit into the regular Marvel continuity, and he oversaw the rise of Marvel in particular and comic books in general as part of mainstream pop culture.

    All in all, a good day’s work.

  6. Some people will never get past the Jim Shooter hate, Jerry. That would require them to start learning how to think for themselves!

  7. For anyone who thinks parody is 100% protected, check out the “Diary of a Zombie Kid” vs. “Diary of a Wimpy Kid” case.

    And even if parody is protected, no one gets sued for parody, they get sued for infringement. Just claiming something is a parody doesn’t automatically drop an infringement case.

    There doesn’t seem to be a definitive rule for what one can get away with in parody. There have been recent cases where a parody won and others where it lost and looking at the actual work there doesn’t seem to be any difference from why one was a legal parody and another was an infringing parody. So it comes down to proving it to a judge. That’s like a comedian trying to explain why a joke is funny.

  8. I think more than getting over the Shooter hate, people need to get over their blind Marvel love. It just seems to me there is a large contingent of people who will always side with the company versus anyone. Jerry makes the observation people turned against Shooter in the Kirby Art Return Fiasco (nice name). However, there seems to be a lot of people painting Kirby’s heirs as villains because they want the rights back.

  9. John- The “Diary of a Zombie Kid” lawsuit was not over the fact that the book was a parody, it was over the fact that the book was so similar in look that is was confusing consumers into thinking they were buying an actual “Wimpy Kid”offshoot book. That was the infringement case.

    Parody is well protected in the courts, but the method in which it is presented makes a difference.

  10. I think the thing with Dave Sim’s Wolverroach was that it was on the cover of issues, and not identified as not being the original Marvel Wolverine. So, problematic, i can see. I wonder what business Shooter intended to do with Sim?

  11. Maybe the artists could sell personalized sketch pads. You buy a sketchpad and the artist, for free, will personalize it with a drawing of your favorite character.

    No fee no foul. If nothing else, it would make it harder to make a case.

  12. “However, there seems to be a lot of people painting Kirby’s heirs as villains because they want the rights back.”

    Rights to what? The characters Kirby created at Marvel? The characters he created under the work-for-hire rules Kirby had operated under since he started in comics in the 1930s? Those “rights”?


  13. @scratchie, Jason

    How do you come to the conclusion that Shooters opinion on this subject wouldn’t be informed? And give me a valid reason, not just “Shooter made Secret Wars II”.

    The guy was editor in chief at marvel for almost a decade, during which they did more adaptations of movie and novel ip and DC crossovers than marvel had ever done before or since.
    He was also EiC during that whole thing when Thomas was in his battle to get the rights to Red Sonja.

    So clearly neither of you know what you’re talking about. Shooter has more right to add his two cents to this debate than you two do submitting your uninformed fanboy rantings on a blog full of uninformed fanboy rantings. Where does that irrational hatred of Shooter come from? Did your mothers make you dress up as Dazzler one halloween when you were little shavers?

  14. And really – in the grand scheme of things it doesn’t matter what Quesada or Buckley think if Disney – who now OWNS Marvel – feels its IP is threatened. They paid a lot of money for that IP and they’ll protect it.

    It’s not a bad thing that they may want to do so, but there needs to be a system in place to protect both the artist sketching and the IP holders.

    We’re working on something right now so artists can license Big Bang trademarked characters for sketching at cons. The small yearly fee they would pay would go toward the Hero Initiative or other deserving comic-related charity. We hope it inspires others to join in.

  15. >> Rights to what? The characters Kirby created at Marvel? The characters he created under the work-for-hire rules Kirby had operated under since he started in comics in the 1930s? Those “rights”? >>

    Presumably, what’s being referenced is the rights as described without buying the other side’s arguments lock, stock and barrel.

  16. Just to toss this thought out there: while copyright is meant to protect a work from unauthorized use and distribution there are no protections (that I know of anyway) against an artist drawing whatever they want and selling it to whomever wishes to buy it. As long as it’s not published–and that would include posting it on the Internet, which is considered a form of publication–there’s no infringement. It’s an artistic expression, a form of freedom of speech.

    The original Barks and Disney dust-up at least partly had to do with the fact that his new duck paintings were being run on the covers of auction catalogs and (if memory serves) being turned into lithographs. Disney had to make what Barks was doing “official”, otherwise they would’ve had a much more difficult time defending against other challenges.

    So my gut feeling is that as long are artists are only selling original sketches at cons, none of the companies are going to care in the least. If, on the other hand, artists are wanting to use Marvel’s or DC’s characters for their show banners (advertising) or in printed sketchbooks or as posters, T-shirts, or cards they want to sell…they’d better get a license.

  17. Would this be a legal way for an artist at a con to avoid selling sketches of trademarked characters that don’t belong to the sketcher, yet still make money? Put a donation jar–with a sign indicating a suggested donation–on the con table. The artist can do a sketch and give it for free to a person who makes the suggested donation. Would the artist have to set up as a specific legal entity–such as a non-profit–to get away with this?

  18. @Tom Richmond: That’s my point. “Parody” isn’t the crime anyone gets sued for, it’s used as a defense against copyright and/or trademark infringement. You don’t get accused of committing “parody.” If the complainant stated that in their case they’d be helping your defense. To them it’s NOT a parody. You have to PROVE your product is a parody.

    “Elf off the shelf” was sued by the “Elf on the shelf” people for the same reasons Zombie Kid was, yet their duplication of the look, style, and format of the original was OK.

    Or what about Kieron Dwyer’s parody of the Starbucks logo? That situation was a total mess. But other logos from other companies get parodied all the time and those are just fine.

    I’ve seen parodies of properties get put on shirts, toys, mugs, posters, etc. and the original IP owner doesn’t care. And yet others get shut down for using a parody of a character in a one-panel gag of a webcomic.

    My point is, regardless of how parody may be protected, there is no actual, legal guideline for what you can get away with that can prevent the original IP owner from coming after you with a lawsuit. The only way to have real protection is to get a license from the IP owner to make your parody. Otherwise, even if they’ve got a flimsy case of infringement against you, it still doesn’t stop them from trying.

  19. “without buying the other side’s arguments lock, stock and barrel.”

    With all due respect, Mr. Busiek, Jack Kirby was around to hear first- or second-hand every single story about how DC screwed Siegel and Shuster. The idea that he didn’t understand and consent to the work-for-hire nature of the comic industry in his time is laughable.

    Now, if the Kirby family can find some legal loophole that will get them some money and stick it to Marvel, more power to them. But I think we need to learn the right lessons from history. The lesson of Siegel and Shuster is “Protect yourself because you will get screwed”. The lesson of Jack Kirby is more like “Be careful what bridges you burn behind you”.


  20. You don’t have to be a blind Marvel lover to think that Shooter wasn’t the crusader for creator’s rights at Marvel that he claims to be. And being an informed source is not the same as being a credible one.

    I don’t hate Shooter, I don’t have a dog in that fight. I think he has talent, and I know his resume. But he has a long history of self-mythologizing, or, at best, saying things which he can’t prove, and which many other people flatly deny.

    He has that in common with other prominent figures in comics history, and it doesn’t make him evil. But it does mean that the Beat really shouldn’t be treating him as a first-person source, especially when the topic is what a nice guy he was to take care of the parodists and infringers, or how bad things will be in comparison to the period he was in charge.

  21. >> The idea that he didn’t understand and consent to the work-for-hire nature of the comic industry in his time is laughable.>>

    See, this whole idea that work for hire is a “nature” that can just be assumed, years after the fact and with no documentation, is just silly.

    Kirby was around for a lot of things. It doesn’t mean the contracts Siegel & Shuster signed and he didn’t must therefore be binding on him, and with another company, to boot, any more than it means he’s entitled to whatever settlements they got.

    The idea that the company gets to act like a customer when paying you but like an employer regarding rights, or that what contracts there were can be assumed to say different things than they actually did because someone who hasn’t seen them insists that everyone there understood the “rules” even though at times other promises were made and those rules never spelled out…well, I repeat: They’re probably talking about the rights in a way that doesn’t assume the other side’s claims to be automatically true.

  22. What if Marvel and DC just cut a deal with all their artists saying that they have the right to do non-reproduced sketches of characters they have worked on for fans. Then they could always say that the artist was working under a license and both sides interest would be protected.

    By the way… I don’t really see how four issues of Wolverroach is infringement… but whatevs. It was a really funny sequence.