Saturday, January 28, 2012

More Reasons Why Work-for-Hire Stinks

Another copyright case from the comics world, but one that has implications for people working in animation.

Writer Gary Friedrich created Marvel's version of Ghost Rider. He sued Marvel claiming that it was created and offered to them and was not done as work for hire. He lost the suit.

Previously, Friedrich commissioned artwork of the character which he sold at various comics conventions. Here's where it gets ugly:
"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."
So, if you work in animation and sit at conventions selling your drawings of characters that you've worked on (or not) but don't own, you are not only violating copyright, you may have to account for each and every sale if the copyright owner ever comes after you.

Cartoonist Dave Sim once said that no corporation will ever pay you enough to successfully sue them. He's certainly right in Friedrich's case. Friedrich is appealing the copyright decision, but is already broke. He owes his lawyers $100,000.
"If his appeal fails Friedrich will be a financially ruined man. He stands to lose everything he owns, and ever will own. Naturally the court doesn’t care for this, but Marvel might. With the imminent release of the second Ghost Rider movie, a franchise that draws heavily from the mythos that Friedrich helped create and has never been compensated for from Marvel (outside of payments for the comic books), Marvel is set to see another financial windfall of multiple millions of dollars. It’d be nice to think that, perhaps, someone at Marvel can see the logic that a settlement would have in this case, if only in the value of good publicity alone. As it is Marvel have done to Friedrich what DC did to Siegel, Shuster, Bill Finger and many others – ground him into the dirt, taken his creation, made more money in a week than the original creator will see in a lifetime and then keep on keeping on. Perhaps it’s time that a campaign designed to embarrass Marvel be undertaken – the sheer threat of such a campaign worked for Dave Cockrum. While Cockrum didn’t get millions, nor did Gene Colan when he approached and asked Marvel, they did get sizable amounts which, in Cockrum’s case alone, allowed him to live his remaining years out in relative comfort and ease. As it stands the people who’ll be making the most money from the Ghost Rider sequel will be people who had nothing to do with the character. As it stands, according to Box Office Mojo, the first Ghost Rider movie has grossed over $115,800,000 worldwide. The sequel should do similar amounts, meaning Marvel will clear a nice sum, again, while denying the creator a cent."
The above information is from 20th Century Danny Boy. Torsten Adair reflects on the situation as well.

And in case you've forgotten, Marvel is owned by Disney. So if you work (or have worked) for Disney, Pixar or Marvel, pay attention.


Anonymous said...

At this point all one can do is *sigh*.
I would LIKE to think that if everyone focused solely on doing their own original content & let these institutions & corporations of culture crumble a little under the weight of their own remake rehash sequel prequel franchise policy then the actual content creators might have some creative capital & a bargaining chip or two.

Unfortunately creative work is relatively sparse & there are plenty a folk vying for it, most having bills to pay & work pays e'm, even if its working for someone else’s means. Most industries are service industries. Ethical rights & fair practices usually fall on deaf ears when talking to those higher up the food chain, as most of the large players write their own rules & employee rights to begin with. If you can’t swallow their pill then they can’t help you pay those bills.

Rodney Baker said...

Something isn't quite right here Mark.

While I can't speak to what be changing with corporate Disney's assumption of command and what the future might bring, could Mike Freidrich's situation be an exception to the rule in the comic book industry? It must be.

If what is being related is true then perhaps Mike's situation is different because of the judgement against him, and that would be terrible indeed because others apparently do not have the same requirement as he does placed on them.

In general, comic book artists do not and have not paid royalties for drawings and commissions of comic book characters.

Please note that if the artist were to publish a book, sell calendars, and seek profit in any way from these trademarked characters they do set themselves up for a visit to the lawyer but in the case of commissioned drawings, cover remakes and the like this is not normally the case and it would be doubly disappointing to see that only a handful of artists (like Mike) are required to pay.

Browse blogs, visit with artists who regularly create commission pieces, chat with folks at conventions and they'll tell the tale. Check with John Byrne and other artists of Mike's generation who regularly create commissions and never pay a penny to DC or Marvel. Is this a courtesy given to only these old guys? Not that I can tell.

Now beyond Mike Freidrich's case, the element that is really worth considering is that under work-for-hire these companies could legally require the artists to pay. That fact alone is enough to state your case. The real concern is what might happen if these companies decided not to look the other way.


Note: Others may find fault with my assessment in a few places and I've omitted some things for the sake of brevity. For instance, one must consider that anyone that has sued Marvel or DC may be watched a little more closely by those companies. Therefore they are more likely to require those particular artist to pay for use of their legally owned characters. At its core this can be seen as a legal requirement because if the company fails to secure their property they risk losing control of the character. (Note that I'm not saying I agree with this here)

Rodney Baker said...

A correction to my last comment:

I typed Mike Friedrich's name in place of Gary Friedrich by accident in my last post. I'm more familiar with Mike's work from his Star Reach days than Gary's work on Ghost Rider.

They are said to be unrelated.

May apology for any confusion that may cause.

Mark Mayerson said...

Anonymous, there is no question that work for hire is more available and pays regularly. It's not going to go away. However, I think that creative people have to ask themselves if what they're doing has the potential to generate revenue beyond the current use.

If you're supplying an element to a property that's already up and running, the odds are that it won't. But if you're helping to develop something that could spin off other revenue streams, should you be asking for a better deal before undertaking it? The company has the right to say no, but if enough artists start asking and some start refusing to do the work, that's more likely to change things than doing nothing.

Rodney, we have seen record companies sue students for downloading songs. We have seen the media conglomerates willing to cripple the internet in order to protect their property. The question is at what point those companies are going to start cracking down on employees and fans who create art of characters they don't own.

Yes, Gary Friedrich "poked the bear" by trying to establish his copyright to Ghost Rider, but that doesn't mean that artists at conventions or taking commissions aren't breaking the law. They are. The fact that companies are extending a courtesy to artists doesn't mean that courtesy couldn't be withdrawn. That courtesy is not enshrined in law without some sort of written agreement.

Anonymous said...

I'm just being the devils advocate here Mark. While I agree wholeheartedly with you I simply wanted to present the notion that there are also many internal & external pressures that often influence things in the employer employee relationship. If the process of acquiring or doing such work were a science with a clear code of conduct to which everyone involved was aware & adhered to when engaging in such business negotiations, then things would generally run a lot smoother & there would be less work around for Lawyers. But we see these glaringly reprehensible illustrations of creator & ownership gone awry because the reality of the world is a bit more Wild West & political when it comes down to $IT$.

None the less I, like everyone else who reads your blog, find it of great service that you raise awareness in pointing out these things & provide some valuable points on the actions that folk can take to better protect themselves & their work.
Our sincere thanks & regards - Anonymous

Rodney Baker said...

I won't be popular in my opinion but I believe the same law that has protected Marvel and DC in these latest judgments will protect those who draw the characters at conventions and are protected under free speech, fair use in copyright and uncommon sense.

What many fail to see is the true value of a contract and what that legally means. It has been established by law and precedence (repeatedly) that artists in the early days of comics all worked under a legal system of work-for-hire and I can't think of a single judgement that has ever sided against this. A few on the periphery have seen some success and remuneration because the weight of a signed contractually binding agreement was evidence that the artist had not been paid in accordance with the contract.

The reason this is a good thing (not for those that didn't know what they were getting into back then, but for current talent) is that this same judicial system will uphold the contract that artists' sign now and side in favor of the artist should Marvel and DC fail to execute their mutually contracted agreement.

Granted, the companies have the advantage. Something should be done about this. If the publisher fails to note a usage of an artists work via merchandise, reprint etc. it is the artist who will have to bear the burden of seeking damages and they will do so as a plaintiff. This will work against them because as it should be the defendant is innocent until proven guilty.

The system could, should and can be more fairly balanced to offset the difficulty of that one person seeking justice against a mega-corporation who has broken contractual obligations will have to undertake in this cases.

The problem I have with those who seek to have the law judge against Marvel and DC is that this would set a dangerous precedence for the current generation of artists who to a greater extent have the contracts working in their favor.

There is no question but that the corporations should take better care of their talent (perhaps even be required to do so*. It is a shame they haven't done more for the writers and artists who so ably created these valuable characters who, like Gary Friedrich are making making millions of dollars for the company. But this is outside of the contract, and the law is only required to honor the contracts we make.

Why can't the average comic book fan see this very important legal distinction? I can only assume they haven't thought through the whole thing.

Now here is the reason the scare tactics and misinformation needs to go away:

Even as an piddly unlearned layman, I believe I could convince a jury (or judge) that all artists who draw comic book characters at conventions and in commissions are required by law to pay royalties. (Think for a moment of the pay that right now *should* be going to Gary Friedrich and it should start to sink in)

Does anyone really want to go there?