I guess the biggest story of the week is Jerry Siegel’s heirs’ “triumph” over DC Comics. I say “I guess” because I’m still trying to figure out what it means, and I gather a lot of lawyers are too, since the ruling itself was vague on the point. Understandably. At issue in the suit wasn’t who owns Superman but who owns the copyright on the first Superman story.
Of course, this is the great ironic iconic good-and-evil fable of comics history, both The American Dream and its dark counterpart, the American Dream Betrayed. Two kids from Cleveland, Jerry Siegel and Joe Shuster, created the greatest comics character the world has ever known. DC Comics bought the story and claimed all rights to the character, for $130, and DC went on to become the greatest comic book company the world has ever known while Siegel and Shuster were eventually thrown off their own character and ended their days in poverty and obscurity. The reality’s more convoluted but it makes a good myth. The short version is that Siegel & Shuster signed a couple contracts and a couple settlement deals with the company over the years.
This was the general pattern the comics business has always lived by; there have always been publishers who depended on youthful stupidity and enthusiasm, and the desire to be published whatever the cost. Still happens at an alarming rate today and, paradoxically, the more convinced someone is of their own worth the likelier they are to sucker out for it, in the belief that, once raised from obscurity by publication, the superiority of their product will be recognized and fame & fortune will follow all the days of their lives. This is likely more prevalent now than ever before, but whatever else you can say about Siegel & Shuster, they really believed in their creation and shopped it around for years before Max Gaines bought it for ACTION COMICS. (During the hearings, DC’s lawyers tried to argue that the company had substantial input into the completed project, on the basis of having it reformatted to comics pages from its original comic strip form, but the judge didn’t buy it, as for anyone who has seen the two versions it’s obvious that the creation was entirely there before the publishers ever came into it.) After trying to get published for so long, I’m not surprised Siegel & Shuster didn’t jump at the chance, and at least for them their premonition was right; Superman did indeed become the biggest thing in comics, and, for awhile, in American pop culture. And for awhile they were riding right along with it.
The big deal, really, wasn’t the original $130 one. (Which one of my fellow professionals denounced as the equivalent of buying Manhattan Island for $24, and it was, but I notice we’re still on Manhattan…) They got a shop out of it, and until World War II their shop was producing most if not all of the Superman material being published. World War II was one of the biggest blessings and one of the biggest curses the business has ever seen. It jumped comics sales astronomically, and it ripped many of the best talents in the business away from their creations, in all ways.
I’m not sure how often lawyers were consulted in the ’30s when comics publishers were buying up stuff right and left and laying claim to all rights in the process, but by the time the draft kicked in someone must have had doubts about the situation’s legality because lawyers started asking talent to sign transfers of all rights to their properties to their respective publishing houses, so the now valuable franchises would continue should war prevent those talents from ever coming back. Will Eisner signed one of these for the Spirit with Quality publisher “Busy” Arnold, and recovered his rights from Arnold when he returned from service. Siegel & Shuster also signed such a deal with DC but exactly what reversion terms had been set depends on which side you believe. S&S were apparently under the impression whatever control over Superman they thought they had would be reverted with their safe return but what they came back to was their studio disbanded, new regular talent assigned to the various Superman features, and themselves reduced to bit players on the feature they’d created. (The best version of the full story, and of the subsequent lawsuit and settlement, is in Gerry Jones’ excellent history MEN OF TOMORROW.) Shuster’s career basically ended at that point, while Siegel continued writing on and off for decades, even returning to Superman a couple times. In the late ’70s, Neal Adams spearheaded a movement to pretty much extort a new deal for Siegel & Shuster out of DC by getting press for their story right when DC was about to be thrust into national prominence via the big budget SUPERMAN movie.
According to the judge, none of that made any difference, aside from the original agreement, because according to the 1976 Copyright Act, the copyright assignment could be ended regardless of contractual terms. Copyright laws allow heirs to terminate copyright assignment as well once a sufficient time had passed since publication, and the time had come for that first Superman story. Jerry Siegel’s heirs dug in and fought, until finally Judge Stephen Larson declared last week that Jerry Siegel’s heirs have recovered his share of the copyright to that story.
What this ultimately means for the business I don’t know.
Cases like this are tricky. As far as I can tell, DC still controls the trademark — the suit wasn’t even trying to wrest that from them — so even though the Siegels now have, theoretically, the right to do pretty much whatever they want with that first story, they’d still probably have to get permission from DC to use the trademark. On the other hand, all rights and trademarks to the Superman character are established in that first story and all future usage derives from it, so — or at least as it has been explained to me by lawyers — DC theoretically owes the Siegel estate a hefty load of cash for all uses of Superman since the official copyright reversion date was 1999.
In practical terms what this probably means is more lawsuits and court dates as Time-Warner attorneys either challenge the ruling or try to drastically limit the payout. So a negotiated settlement looks likely, especially since the estate of Joe Shuster is now looking to terminate the other half of the copyright assignment — not sure why the essential date is 2013 for them — and, if awarded, in theory that could put to Siegel & Shuster estates and DC comics on equal footing, with neither camp able to do anything without the cooperation of the other. Short of that, the Siegels could always sell their copyright to someone else; I bet Marvel would like to own a piece of Superman, especially if it meant DC would have to pay out for all uses of the character. (Not that that would necessarily be the case; at the moment no one really knows what the case would be.)
At any rate, there aren’t many situations that parallel this one. One of the salient points seemed to be the pre-existence of the character to its purchase by DC, suggesting that characters specifically created for and under the directions of a publisher wouldn’t be so protected. How many characters were there, really, created from whole cloth? Despite the official Bob Kane myth, for instance, Batman seems to have originated as a corporate affair. The situation is made murkier by the cozy relationships between comics sweat shops and various publishers in the ’40s, since in many cases where publishers left off and shops started was a fuzzy line and many things were created to fit publisher requests. Other creations are blurred by multiple versions; Martin Nodell and his wife Carrie once insisted to me that he created his original Green Lantern character from whole cloth, before taking it to DC to show to an editor, and that the character’s real name was always Alan Scott and writer Bill Finger was only brought in after the first story. The official version is now that Finger was involved from the beginning and that the character was originally named Alan Ladd, fitting the “magic lamp” theme by twisting Aladdin, but was dropped because it was too corny and unbelievable, right before the actor Alan Ladd, who resembled the character, became famous. Where does the truth lie? At least in Siegel & Shuster’s case the basic facts are pretty cut and dried. Most other stories are buried in legend.
Would it help Jack Kirby’s heirs, for instance? Depends on a lot of variable factors, like how much he invented just to invent it and how much was a genuine collaboration. In his favor: he was never “on staff” at Marvel, despite how he was portrayed in the Bullpen Bulletin pages. He was always freelance. That may ultimately be the downfall of a lot of these cases; publishers have since comics began wanted it both ways, to consider talent freelancers so they didn’t have to pay what the law demanded of employees, and as employees for the purposes of controlling rights to the material, and in that they’re not alone. Hollywood’s big on that too. Any future cases will ultimately depend on who judges them, and how much weight they choose to give to Judge Larson’s elaborate opinion, provided it’s not overturned on appeal.
For those of us who came into the business after 1977, the case really means nothing but satisfaction, since we operate under a different set of rules. Not that comics publishers haven’t been trying to subvert these rules since they were instituted in the ’78 Copyright Act, but at least we know what the rules are, and if we act against our own interests we only have ourselves to blame. Youthful indiscretion — or any other kind — is no longer redeemable, so bear that in mind the next time you’re asked to sign away all your rights to something in order to get it published, a situation that has become more and more common over the past 15 years. There are sometime good long term reasons for taking what seems to be a short term hit, and I keep hearing of “up and coming” freelancers willing to throw those dice, but I’ve never met anyone who has ever signed away their rights in or control over a what turned out to be a popular property who wasn’t bitter about it in their 40s.
The one truly ugly element of this whole situation was exposed on the Newsarama Message Boards, where supposed comics fans, predictably, started complaining about the decision (among the crasser comments was the suggestion that if Siegel’s 91 year old widow wants more money she should get a job) and worrying that it could destroy Superman, as if continued publication of the character were the only important matter at stake. (The fact is that Superman is a profitable enough property that lawyers will always come to an agreement to keep cash rolling in from it, so putting the fate of a fictitious character over those of real people is flat out idiotic in this case.) Meanwhile a friend who took part in the recent Writers Strike mentioned how his friends, with “normal” jobs, questioned by writers (and, by extension, all creative types) have the audacity to think they should be paid “more than once” for their work. This is all part of the same mentality, the idea that whatever you do your employer gets to make the money off it because it’s his risk and he’s paying you, and you knew that going in.
Well, there’s an easy enough answer to that one: if you believe that you’re an idiot.
Creative freelancers are their own employers. Like anyone else the deals we make during our active earning years are the deals we live off the rest of our lives. “Normal” jobs have retiree health benefits, pension plans, etc. We get none of that, unless we belong to a strong union with the muscle to provide health care, and that’s pretty much only the WGA and only if you’ve worked in film or television a sufficient amount. But more and more people at “normal” jobs are retiring only to find their health plan has been cancelled or whatever their pensions were invested in have gone belly up, and suddenly they find themselves staring down crippling medical bills or working as an 80 year old greeter at Sam’s Club to make ends meet. Most of us don’t want to be greeters at Sam’s Club so we try to set up arrangements to keep money coming in, especially on things we created. Because that’s how it’s done these days in this field; things like royalties for exploitations of works — even if those exploitations didn’t exist at the time the work was done — are now an established element, certainly of the comics business, and of the book business for a considerably longer period. It’s our version of a pension plan, as subject to a publisher’s ability to profitably exploit a property as any employer pension plan. It has been the usual policy of comics companies to not include old deals/creators in new payment programs, but there’s absolutely no good reason why the Siegels & Shusters shouldn’t get, at minimum, the same creator compensation deal that the creator of, oh, Spoiler gets.
In the Siegel estate’s case, they weren’t trying to get anything they’re not entitled to under the law, as Larson’s opinion makes evident.
Look at it this way: money is how we measure value in our society. With media properties, it’s often difficult to determine value up front, and if value were determined up front there would be almost nothing put into production in any medium, because full payment of possible value would be almost prohibitive. Look at the money machine STAR WARS turned into; nobody guessed that in advance, which is why it had no notable stars (except for Alec Guinness and Peter Cushing, and neither were exactly the king of Hollywood at the time) and a relatively low production budget. If George Lucas had known what revenues the property would eventually generate and had asked for all those up front, it never would have gotten made because no one could have afforded to meet the price.
So in media the initial payment isn’t the total payment (though it sometimes ends up that way), it’s the down payment. Publishers and producers don’t “buy” properties so much as place their bets; they secure the cooperation of talent. “Value” isn’t determined in advance, but as it accrues, and as the established value of a property increases, so does the amount paid to those who generate it, according to whatever contract is in place. There is the common belief, for whatever reason, that the publisher/producer is the one taking the risk and therefore the rightful end point of all profits. But by choosing to work with them, and the operations they represent, we take a risk too. We are risking that they will make the right decisions along the way to public release, that they will be able to intelligently and fully exploit the property for the fullest short-and-long term profitability. And you know what? More often than not, they don’t, even though that’s their job. It’s only not our risk if we’re not getting paid more as the property is more successfully exploited.
Because that’s the game.
Your job doesn’t work like that? Don’t come crying to me about it. Why doesn’t it work like that? Why don’t you insist on profit sharing? Many companies do profit share; others, while they claim all rights to technologies or other profit streams developed by their employees, also provide additional payments for “the same work.” Ever heard of Christmas bonuses? Incentive bonuses? Law firms frequently pay bonuses to lawyers who bring large accounts in, or win large payoff cases. Some companies pay royalties to employees whose ideas continue to generate revenues for the company, for as long as the ideas generate revenue. Nothing in the freelance setup is unheard of in “normal” jobs.
There’s a line in an old Bob Dylan song that goes
“And you ask why I don’t live here?
Man, how come
you don’t move?”
Well? How come? Because there’s a Sam’s Club right around the corner?
Continuing from last week: part two of Wally Wood’s 1950s MASK OF FU MANCHU. No idea who the writer is, but it’s funny how you can almost smell his future T.H.U.N.D.E.R. AGENTS work in this…
All the projects I was waiting for jump on suddenly pulled the trigger, so I’m up to my neck in paying work this week. This week’s weirdness: just got an email informing me that a poster for BADLANDS, the Kennedy assassination crime thriller I did with Vince Giarrano, is prominently positioned in several scenes in SUPERHERO MOVIE. Anyone connected with the production care to drop me a line to tell me how this happened? (And where did a Badlands poster come from anyway? I don’t have one…)
After reading a year’s worth of Virgin Comics, am I the only one thinking it’s a really suspect idea? (Especially in light of the whole DC/Siegel & Shuster thing.) Here’s the concept: get big name stars to put their names on comic books — I guess theoretically they have a hand in the creation, but while I know that, say, Tom Jane has input in the books he’s doing with Steve Niles over at their company Bad Planet, did Jenna Jameson really have anything to do with even the appallingly empty SHADOW HUNTER or is it just a name game? — then hire experienced comics writers (who by all rights have the brains, skill and imagination to come up with their own new creations that almost certainly would be better than the unimaginative tripe Virgin’s now pumping out right and left) to do the actual creative grunt work on them. Not that I blame the writers — bills have to be paid — but a boon for creativity in the comics industry it ain’t. Or is this supposed to be like “Walt Disney’s Alice In Wonderland”…? So what’s the current status of Virgin Comics anyway? (I never hear anyone talking about them.) Has this “comics by stars” strategy netted them any significant sales or media deals? (For my British friends: I read that the Virgin ISP in England is now planning to disconnect users generating questionable P2P traffic, which some — see below — want of all ISPs.)
Probably the biggest media news of the week is that Friday night at 10 PM, BATTLESTAR GALACTICA begins its final season on the SciFi Channel. Now that THE WIRE has ended, BATTLESTAR is easily the best American show on TV, putting pretty much every network show to shame with its complexity, originality, unpredictability and humanity. Not to mention grunge. If you haven’t watched it, watch it; it’s intelligently and not condescendingly written, but it should be easy enough to pick up the gist of things very quickly. If you’re already watching it, you don’t need to be told. This is the season that pays for it all. (Or so my pal Mark Verheiden, who’s on the writing and producing staffs, tells me. Though he hasn’t told me anything more than that, so it’ll be a big surprise for me too.)
For those keeping track of British TV, the second series of TORCHWOOD will end this Friday in the UK and DR. WHO begins its fourth series Saturday, while BBC AMERICA debuts the latest series of psychological crime thriller WIRE IN THE BLOOD on Sunday night.
Now this is funny: Sony BMG, a media conglomerate that’s a major player in the MPAA, RIAA and other media piracy operations, got its Paris office raided in January, where it was discovered a number of programs in use on Sony BMG computers were… pirated! Sony’s response to a reporter’s inquiry was to order a paper not to report the story. (They did anyway.) An infringed company, PointDev, which triggered the raid on learning a Sony employee calling for tech support wasn’t listed in the database (which indicates that either the employee is arrogant and stupid, or he assumed the software was legit, which would suggest it was placed on his computer by company IT, which would almost have to know the software was pirated and didn’t tell anyone), has initiated an infringement lawsuit against the multinational. Meanwhile, our current attorney general, Michael Mukasey, repeated (apparently in dead seriousness; choose for yourself whether he was cynically trying to generate another p.r. scare, or just dirt ignorant) a hilarious claim originally concocted by some frothing film conglomerate lawyer, that media and software piracy is a grave national security concern because it’s funding terrorism! Presumably he means Chinese DVD and software pirates, since the sin of Internet p2p “piracy” is giving things away free, so it’s hard to see how that would help terrorists fund their operations. Now DoubleClick payments, maybe…
Over in Congress, California representative Howard Berman, who I vaguely recall as being a pretty okay guy when I was living there, has taken up the banner of the film companies and claims that a stringent crackdown on piracy, including creating a new federal agency specifically to police on Hollywood’s behalf with wide and interesting new search and seizure powers, will be enacted into law this year. Not unexpected for a congressman with Hollywood connections. Berman, however, has apparently decided to take the “war on terror” approach to the intellectual property issue, declaring first that there’s “little opposition” to his proposed crackdown, then stating that any person or group that does oppose it “are people who just want to steal intellectual property.” And then acknowledges those groups are “very popular.” Among Berman’s proposals for future action are forcing ISPs to police all traffic through their servers and deal with anyone “stealing intellectual property” (which technically can’t be stolen, only infringed, but “stealing” probably sounds better in press releases) and declaring war on countries tolerating media piracy. He claims he’s just kidding on that last one, but considering John McCain’s trying to resurrect the cold war and freeze Russia out of the international scene, that Russia has some of the lukewarmest of lukewarm anti-piracy laws on the books and China is home to some major piracy operations… (Permanent Damage recommends this examination of the “ProIP” bill by a pro-IP attorney, by the way…)
Apparently ringtone sales are dropping precipitously, cutting off a major if idiotic revenue stream for the cellular phone industry. I always wondered when people were going to wise up (especially since considerate cell phone users keep their phones on vibrate rather than ring)… Speaking of cell phones, some doctor is now claiming that cell phones are deadlier than cigarettes, resurrecting old claims that using cells up your odds of brain cancer. Never mind that lung cancer rates in America are astronomical while brain cancer rates are fairly low, so… a point of concern? Sure. Deadlier than cigarettes? Only by the math used at R.J. Reynolds…
Many wrote last week correctly excoriating me for misrepresenting basic economics: prime interest rates are dropped to promote inflation. In theory. Except currently that’s not why the Fed keeps dropping rates; they’re supposedly staving off the dreaded Recession by encouraging lenders and borrowers to keep money flowing, and that somehow “reassures” the stock market. (I know it does, in the very short term, but I’ve never been able to figure out why, since the Wall Streeters I know aren’t dumb; they have to know it’s a shell game. Then again, they all knew when buying up subprime loans it was nothing more than a pyramid scheme, but either they had a religious belief that the growth market would go on forever or they figured they could dump the loans on some other sucker for a profit before the bottom fell out.) Except the government doesn’t want Inflation either, which is also a dreaded word. Inflation means your dollar only buys 90% or 75% or worse of the amount of something it bought 100% of yesterday. Currently energy prices, health costs and food prices are staring down the barrel of runaway inflation, which is clipping the pocketbooks of many Americans, so the last word any politician wants to use in an election year is “inflation.” Except maybe “recession.” Or “depression.” Especially when the dollar is already in crushing decline against the Euro. (Hell, it’s in crushing decline against the Canadian dollar, which is like the Yankees losing games to a Little League team.) But all this only reinforces that as far as Washington is concerned, the Stock Market is the economy, which is why the government is perfectly willing to spend millions of our tax dollars to bail out “venerable” Wall Street firms apparently too dumb to live, but so far has done absolutely nothing to help homeowners being dispossessed by the subprime crisis. (Not that they aren’t too dumb to live either; did they really think the scheme made sense?) I notice John McCain, as part of his presidential campaign, has promised that if elected he’ll look at the housing crisis and put together a plan to “deal” with it. How about you tell us your plan before the election, John? You know, so we can make an informed assessment. Trust is lovely and all, but I’d rather know than trust.
Congratulations to Bobby Timony, the only reader to figure out every cover in last week’s Comics Cover Challenge theme showed a cylinder or cylindrical object. (One reader did suggest “phallic objects” as the theme, which I guess is also accurate, but since Bobby beat him to the punch anyway I needn’t officially make that decision.) Bobby want you to go have a look at the webcomic Night Owls, which is updated every Thursday, so go have a look!
For those who came in late, almost every week I run a Comics Cover Challenge: the covers of seven seemingly unrelated comics (thanks to The Grand Comic Book Database for the covers) from throughout comics history are spread, usually not in any particular order, down the column. But a secret theme — it could be a word, a design element, an artist… anything, really – binds them together, and the first one to e-mail me with the correct solution can promote the website of their choice, subject to my approval. IMPORTANT NEW RULE: PLEASE INCLUDE WITH YOUR GUESS THE WEBSITE YOU’D LIKE TO PROMOTE IF YOU WIN. (You never know; I might just go on a mass linking spree one of these days, if I can ever find the Internet’s answer to a water tower.) As in most weeks, I’ve hidden a special secret clue to the answer somewhere in the column, but this one you can really get behind. (In fact, probably better to.) Good luck.
TOTALLY OBVIOUS. Collecting all my “Master Of The Obvious” columns from 1998-2000, with still relevant commentary on comics, culture, creativity and the freelance life, revealing many previously unvoiced secrets behind all those things.
HEAD CASES. A collection of comics scripts from work done c. 1992-1995 for various companies, including an unused script. Annotated.
Those wishing to comment should leave messages on the Permanent Damage Message Board. You can also e-mail me but the chances of a reply are next to nil these days, given my workload, though I do read all my e-mail as long as it’s not trying to sell me something. IMPORTANT: Because a lot of people apparently list it in their e-address books, this account has gotten a slew of virus-laden messages lately. They’re no real threat but dealing with them eats up time I don’t really have, to the extent I can no longer accept unsolicited e-mail with attachments. If you want to send something via attachment (say, art samples) ask me first. If I say okay, then send. Unsolicited e-mail with attachments will be wiped from the server without being read.
IMPORTANT PUBLIC NOTICE OF COLUMN POLICY: any email received in response to a piece run in this column is considered a letter of comment available for printing in the column unless the author specifically indicates it is not intended for public consumption. Unless I check with you or the contents of your e-mail make your identity unavoidably obvious, all letters are run anonymously.
Please don’t ask me how to break into the business, or who to submit work to. The answers to those questions are too mercurial for even me to keep up with.
The WHISPER NEWSLETTER is now up and running via the Yahoo groups. If you want to subscribe, click here.
I’m reviewing comics sent to me — I may not like them but certainly I’ll mention them — at Steven Grant c/o Permanent Damage, 2657 Windmill Pkwy #194, Henderson NV 89074, so send ’em if you want ’em mentioned, since I can’t review them unless I see them. Some people have been sending press releases and cover proofs and things like that, which I enjoy getting, but I really can’t do anything with them, sorry. Full comics only, though they can be photocopies rather than the published version. Make sure you include contact information for readers who want to order your book.