You can be sympathetic to Gary Friedrich’s current situation—older, broke and in bad health—while still being alarmed over all the issues his court case has raised. My own email and IMs are full of variant views on it. So let’s trace the evolution of this a bit.
STAGE ONE: As shown by Torsten’s post, the first reactions were pity and alarm. Pity for Friedrich’s situation—ordered to pay $17,000 to Marvel/Disney for all the money he made over the years selling Ghost Rider merchandise at shows, and enjoined from ever making any money off of the character again. Alarm for the chilling effect this could have on creators who sell art based on copyrighted characters.
The extension of this alarm was worry over whether this might open the door for Marvel/Disney to go nuclear on all the artists selling their prints and sketches of Marvel characters at shows.
STAGE TWO: While efforts to raise money for Friedrich have gone on to help him in his current situation, a new train of thought emerged from the station, this one carrying the payload that maybe Friedrich had brought this on himself, and Marvel/Disney had no choice but to lower the boom on his case. Ty Templeton has the best encapsulation of this viewpoint, so we’ll take the liberty of reprinting it in full so you can follow along:
I’ve heard from several people who hold this viewpoint, and based on the source of these communiques, I’d guess that this is close to the line that Marvel itself is giving to edgy freelancers—not in an official capacity but perhaps in the confessional booth of the intimate editor-to-freelancer telechat. Some of this argument goes as follows:
When Friedrich sued Marvel, he stated in open court that he made his living off of Ghost Rider merchandise. This was such a blatant affront to Marvel’s trademark that they had no choice but to defend it, and as they would with any publisher who started publishing Ghost Rider comics without paying Marvel, they had to defend their trademark or risk losing it.
So, this argument goes, Marvel/Disney has no interest in patrolling Artist’s Alley and suing anyone who is selling a sketch for back pay. This is great news for Duval Stowers and Rob Granito alike, surely.
Along with these arguments there is also, as referenced in Templeton’s cartoon, a bit of a dig at Friedrich for the fact that he was selling Mike Ploog art without Ploog’s consent. And also the fact that Friedrich clearly CO-created Ghost Rider along with Roy Thomas and Ploog. By some accounts, it is Thomas, with his “Let’s update the old Night Rider character!” pitch who is the modern Ghost Rider’s true daddy. Thomas and Ploog don’t seem very concerned with the matter, publicly at least. But they both have had far more successful careers than Friedrich.
Before getting into whether the Marvel Trademark Gestapo is being armed and briefed as we speak, it should be pointed out that that there are two fairly reasonable courses of action here that should surprise no one:
As an older creator in an industry with no safety net, Friedrich did what most people do, and traded on the most famous characters he created. If copyright is really going to be applied, good thing old Mart Nodell and his “I created Green Lantern” sign in AA isn’t here to see it. What Friedrich did has been standard practice since the dawn of the con.
By the same token, Marvel was only doing what they had to, legally. Setting aside the moral and ethical issues of what they owe Friedrich (and Ploog and Thomas), they had to enforce their trademark. And it is totally their right to do it, especially in a court case that is setting precedent. They couldn’t let it slide with some kind of “Only a Poor Old Man” clause.
STAGE THREE: OKAY, got all that? Now here are two posts you must read. First is Daniel Best’s roundup of misconceptions about the case, including lots of court documents and exhibits. For instance, the court did NOT ban Friedrich from saying he created Ghost Rider:
What this means is that Gary CAN say that he created Ghost Rider. If you ask him to, he can sign your comic books, artwork, posters and prints – no problems. Gary can also sell signed merchandise, but the merchandise has to be official Marvel licensed goods, bought at retail. If Gary approaches an artist to draw images of Ghost Rider, has he has done in the past when he commissioned Arthur Suydam and Herb Trimpe to create original art which he then had made into prints, then he’ll be in breach of the court order (you can see the Trimpe images here).
Anyone interested in the case should read Best’s entire post. Go ahead. We’ll just drink our Aeropress coffee.
Okay, now to the Artist Alley Gestapo. On Facebook, Steve Bissette has posted thoughts from comments from Jean-Marc L’Officier, an agent/legal consultant who has had many official dealings with Disney over the years. Bissette has urged reprinting the entire post, and we’ll do just that:
ALERT, ALL COMICS CREATORS [Reposting, for a necessary (requested) edit; reposting all comments, too, after this main post. Apologies.]: With permission, I’m quoting key points my dear friend and own legal advisor/contract consultant (since 1992) Jean-Marc Lofficier raised on his posts to a Yahoo forum discussing Ty Templeton’s cartoon concerning the Gary Friedrich v Marvel judgment. Jean-Marc succinctly notes WHY this judgment has changed EVERYTHING for anyone who has worked for Marvel, or what this judgment changes (probably irrevocably) about the landscape for all concerned:
“…with all due respect to Ty, he’s talking (drawing?) out of his ass.
So to clarify again, here is what I thought is important to remember here:
1) This is the first time Marvel is using convention sales of copyrighted Marvel characters as a “weapon”. They are of course perfectly entitled to do so, legally speaking. But it does mean that, from now on, all of you here who draw sketches of Marvel characters for money at conventions or sell sketchbooks containing pictures of Marvel characters are on notice that you might be sued (usually for triple the amount you made) should Marvel decide to go after you.
My legal advice to you guys is simple: STOP and destroy all sketchbooks for sale with copyrighted materials in it. I’m serious. You’ve just been put on notice by this case.
[Note: In a followup comment to a question on the matter of selling sketches/sketchbooks at conventions featuring Marvel characters, Jean-Marc added:]
If Disney and/or Marvel have a policy to deal with that sort of business, I would encourage anyone planning to sell sketches, etc. to contact them and obtain a waiver or a permission of some kind under that program.
— [name withdrawn] is incorrect about one thing: Disney, if not Marvel, does have a full office staffed with para legals of young lawyers whose only job is to look for copyright/tm infringements and send C&D (cease & desist) letters. I have seen them. They don’t do it for the money or to be a pain the the ass, they do it based on the legal theory that if you don’t actively protect your (c)/tm, you run the risk of it being used against you as an affirmative defense in an infringement case.
Based on the GHOST RIDER case, it is, in my opinion, only a matter of time until Disney, now aware of the issue, sends one of their young attorneys with a stash of blank C&D letters at conventions and start handing them out to everyone selling Marvel sketches without authorization.
Receiving that letter will oblige you to hire a lawyer and even if Disney lets you off the hook (which they probably will), you might be out of a couple of grands by the time the process is over — or you run the risk of being stuck with a $15K bill if you fight them.
Again, I emphasize: this is sound business practice for Disney; NOT doing it entails risks far greater than doing it. They have gone after children’s nurseries before which had Mickey painted on their walls for the same exact legal reason. And that was far more time consuming and bad PR-wise that going after some comic book guys at artist’s alleys.
It is only a matter of time.
So if they have a waiver/permission program as Ivan says, join it; if not, stop.
[Back to Jean-Marc’s original, full post:]
2) Although there never was any serious dispute that Marvel owned whatever share of GR Gary Friedrich was claiming (personally, I’m not a mind reader but I think Friedrich was hoping for some kind of settlement), there remains two legal issues that Ty obviously didn’t grasp:
2.1) When Moebius drew his SILVER SURFER with Stan Lee, he got royalties and he was still getting them when Starwatcher split in 2000. You will note that modern-day WFH agreements spell out that the money you’re getting will be the sole compensation you will ever receive and you’re not entitled to anything else. It is spelled out because if it is not, courts are at liberty to interpret the contract and decide whether or not you should be getting something extra.
The back-of-the-check contract signed by Gary did transfer ownership of GR to Marvel, and the amount of that check was the consideration for publishing rights, but nowhere did it actually state (as it does today) that it was the ONLY consideration to which Gary might be entitled in the event of a film or a TV series. The Court could have easily decided that on the absence of that clause, Gary was owed something.
2.2.) There is a famous case about singer Peggy Lee who won her suit against Disney for their reuse of her songs in LADY & THE TRAMP on video, because that medium didn’t exist when she signed her original agreement with the Mouse, and contracts at that time didn’t specify the now standard “and other media to be invented in the future”. The Court chose to interpret that lack of specificity in favor of Peggy Lee. When Marvel sold the rights to GR to the studio which produced it, they likely sold the video, DVD and game rights. These media did not exist when Friedrich signed his back of the check contract which did not list any and all future media. Therefore, based on the Peggy Lee case, the Court could have found that Marvel didn’t own those rights, and therefore couldn’t resell them, or, as in the Peggy Lee case, simply that they owe the plaintiff some kind of percentage, that’s all.
So it remains my contention that Marvel owes “something” to Friedrich (and Ploog as well) based not on the publishing, but purely on the disposition of the multimedia rights to GR. That the Judge decided otherwise is a tough break for creators, and unjust.
3) Which brings me to my next point, which is that documentary standards are being unfairly applied throughout the judicial system, and somehow mistakes always seem to favor the corporations, not the small guy. The enforceability of a contract depends on accurate documentation which must be produced in Court. If you have a mortgage, but the bank cannot produce your properly signed promissory note, then the court has the possibility of nullifying your mortgage. It’s happened in a few rare cases, but more often than not, people have been thrown out of their homes despite banks being unable to produce a properly signed note.
In this case, has any of you seen the back of the check signed by Friedrich?
Was that check properly endorsed? Was there anything crossed out? Why should mistakes in documentation automatically benefit the corporations, and the little guy should be held to standards of evidence that the companies themselves don’t respect? Why did the Judge assume that the paperwork was in order & automatically benefited Marvel? What I’m saying is, if people can lose their homes despite proper paperwork, well, then, Marvel could lose GR despite its paperwork. It’s up to the Court.
So whether or not you feel any sympathy for Gary and his cause, this is another loss for the Little Guy which, in the greater scheme of things, impacts all of us.”
SPREAD THE WORD. SPREAD THIS LINK.
And QUIT doing, creating, selling ANY sketches or sketchbooks or prints featuring Marvel/Disney characters, IMMEDIATELY. And let fans know WHY you are no longer doing them, and/or CANNOT do them ever again.
So there you have it, gentle, friendly checkbook-wielding Marvel assuring its freelancers they aren’t coming after anyone, along with the fairly inarguable fact that they now have a legal precedent that sets the stage just for that.
So what to do?
My own personal takeaways:
1: The potential for Marvel and even Disney to have a black eye over all this is huge. The stories of Siegel and Shuster and, increasingly, Kirby are well known enough that the idea of a poor older creator being stripped of some kind of morally decent stipend for the multimillion-dollar exploitation of his or her work isn’t hard to swallow. While Marvel and Disney have kept a hard line on this—because as a corporation, they have to—I would say that with the internet and all, now is the time to complain and complain loudly. Boycotts, protests, more. Warners didn’t HAVE to give Siegel and Shuster that stipend back when the first Superman movie came out; but the executives at the time knew that they were losing the PR battle. The idea of Nicolas Cage riding up on his chopper and giving Gary Friedrich a check for a few thousand dollars would be worth an entire year’s PR budget.
2: To be on the safe side, you should do as Jean-Marc suggests; my own guess is that Marvel is not going to sink any money into forming a Gestapo/Clone Army right now. I doubt Disney is that interested, either—Deviant Art is proof of that. However, as J-M says, down the road, as Marvel becomes more and more a division of Disney and less its own thing, they might be more inclined to take down more flagrant violators.
Even now you can walk through Artist Alley and see kids selling their manga sketches of Jasmine and Belle. Disney hasn’t stopped them. Yet. So there is some “Don’t ask, don’t tell” in all this.
3: Do comics artists of the world have one more thing to worry about? Without questions, yes.