Progress, far from consisting in change, depends on retentiveness. When change is absolute there remains no being to improve and no direction is set for possible improvement: and when experience is not retained, as among savages, infancy is perpetual. Those who cannot remember the past are condemned to repeat it.
George Santayana, The Life of Reason, Volume I: Reason in Common Sense
Today, history repeats itself once more. This time, the company is Marvel Comics. The creator: Gary Friedrich, who has filed a copyright lawsuit against Marvel to reclaim his creation Ghost Rider. Daniel Best reports on the current state of the suit, which was recently decided in Marvel’s favor.
What makes it unsettling is this:
As per the courts instructions Friedrich has to account for any and all money that he has received, “…relating to the gross and net amount derived from Plaintiffs’ sale of goods bearing the Ghost Rider image, likeness, or Marvel trademark.” This means that Friedrich has to account for every cent each and every time he sold a print at a convention or any other item to anyone, that has the Ghost Rider image or name on it, and he has to account to all of the defendants in the case, and there’s quite a few of those, including, but not limited to, Marvel Defendants, Movie Defendants, Hasbro, Inc. and Take-Two Interactive Software, Inc. If the defendants don’t like, or don’t agree with, the numbers that Friedrich supplies then they can, and probably will, ask for a deposition whereby they can question him, under oath. It was no secret that Friedrich commissioned artists such as Herb Trimpe, Arthur Suydam and others to draw Ghost Rider images which were then sold as prints over the years. If you bought one thinking you were helping Gary, well, that cash will most likely end up in Marvels pockets. This amount will be factored into any damages that the defendants can claim from Friedrich, all of which will be bundled up neatly into a final judgement so the case can then proceed to the appeal stage.
This lawsuit was first filed when the original Ghost Rider movie was released in 2007. That movie grossed $228,738,393 worldwide. With licensing of ancillary products, Marvel made quite a bit of money. On February 17, 2012, the sequel, Ghost Rider: Spirit of Vengeance will be released.
Marvel could do the right thing and settle the case, which they won, by offering an equitable settlement, an annual stipend, perhaps even some sort of consulting role. Would they? It’s unlikely. (For every Dave Cockrum, there’s a Marv Wolfman.) Could a media campaign geared towards embarrassing Marvel, Sony, and a certain celebrity comics fan starring in the movie help convince Marvel to Do What Is Right? I don’t know… but it would be fun to find out!
To every comics creator who has Worked For Hire, and has sat behind a table in Artists Alley: you may one day be forced into an accounting not unlike the metaphorical Final Judgment, although much more painful. Every fan sketch you draw, every print you sell, of a copyrighted and trademarked corporate character could and probably will be used to numerate damages awarded to that company.
Yes, that’s the sleeping tiger in the room when comics creators rant and rave over swipe artists and plagiarists: EVERYONE who draws a character they do not own is engaged in some sort of illegality. Most companies allow this to happen, partly because actual licensing is problematic, partly because it would be bad publicity to enforce, partly because it encourages creators to show up at cons and participate in corporate-sponsored publicity (panels, booth signings, media interviews). That “paper tiger” you think is harmless… well, paper can be quite nasty, as the courts prove every day. Don’t think it could happen to you? What if a giant corporation wanted to punish an artist? A simple copyright/trademark infringement suit is all it takes. Grab a few sketches sold on eBay, or pay a kid to purchase a sketch at a con (just like those underage buyers of cigarettes and beer) with a “father” making a video with his smartphone , and the case is quite simple. No need to negotiate a settlement… you ruin the creator with court fees, an audit not unlike one from the IRS, and awarded damages. AND they cannot ever draw those characters ever again. If the company is really devious, they issue the artist’s work as legitimate merchandise, then cause more heartache when a fan asks the artist to sign the poster/print/book.
Then the company “encourages” other artists to join the official “bullpen” at conventions, an “Artists Alley” which is part of that company’s booth. The artist gets a free table, airfare, hotel, and money from sketches; the company gets an artist who draws every hour of the con, which brings people to the booth, plus they sell con-exclusive blank-cover variants for a premium which the artist then sketches on! (Or they sell trades!) Convention organizers probably make more from selling corporate space than from Artists Alley tables, so they wouldn’t care. They would probably encourage this, as the publisher would then supplement the guest list which the convention could then publicize.
Sound crazy? Boom! Studios does this quite frequently. Amy Mebberson sketched hundreds of Muppet covers at conventions when she was a Muppets comics artist. Boom’s Disney comics artists did the same thing. If I remember correctly, the special comic cost $5, the sketch $10. It was beneficial to both artist and publisher, as the artist had greater visibility at the publisher’s booth, while the publisher was able to sell more comics and trade collections. (Not unlike an author signing at a bookstore, except that the artist sits behind the table for hours each day.)
Creators, keep a detailed paper trail. Keep a journal, especially when creating new characters. At conventions, have an assistant note what is commissioned and for what amount (and report it as income… you don’t want an IRS audit as a result of not reporting income discovered from the court ruling!) Copyright is also important, and quite simple and inexpensive to file. Know not only what you need to know, but also what could happen.
Because history repeats itself, forcing us to do it over and over until we get it right.
[Hat tip to Stephen Bissette’s Facebook page.]