More on Steve Gerber, Howard the Duck, and Omega the Unknown

I was going to do this in the comments to Brad Curran's post from yesterday, but I felt like reminding everyone that I have posting privileges here.

So. As I said in that thread, I strongly sympathize with Steve Gerber's attempts to gain some measure of control over the characters he created while working for Marvel, including Howard the Duck and Omega the Unknown.

Of course, I'm a little biased. Gerber is my favorite writer to work in the comics factory system, ever, period, full stop. And, on the other hand, I don't have any particular attachment to Marvel as a brand. I like plenty of Marvel product, from Joe Maneely's stuff back in the fifties to Supervillain Team-Up: Modok's 11, but I certainly dig plenty of Marvel's characters. But I don't have any particular loyalty to Marvel Comics.

So now that I got my cards on the table, lemme provide some context, starting with this summation of Steve Gerber's Howard the Duck lawsuit. This is coming from estimable comics historian and writer Mark Evanier, so it carries a little more weight than anything I could say.

*Hey Mark;*When I first started working at Bell Labs, I signed a document that stated*anything I develop while under AT&T's employ is owned by them. Is there a*similar document for comic pros. I was under the impression that there*was. If so, then Gerber really didn't have a leg to stand on. Unfortuneately*the same could be said for Kirby and many others. What's the story here?*Bob Rex

ME: You were an employee, Bob. They probably gave you vacation time, a health plan, other employee benefits. They bought your TIME so they owned whatever was created during it, especially working in their offices and with their equipment.

I'm a professional writer. I am self-employed. I work in my own office (paid for by me) on equipment I bought. I create work which I sell to various publishers...this script to DC, that one to Marvel, etc.. I get no vacations, no health plan...they don't even deduct taxes from my check. When a company pays me, they are paying for a specific script with a specific contract with rights that we specifically negotiate. Obviously, since I work for several companies at a time, no one company can claim ownership of all my ideas.

Jack Kirby and Steve Gerber worked for Marvel on the same basis. On top of that, Jack was paid only for artwork...which raises some question as to how Marvel could claim ownership of story ideas he contributed.

They also did not sign the kind of contract you signed with A.T.&T. Some years ago, when there was the famous dispute between Marvel and Kirby over the return of his original art, Marvel was trying to require him to sign that kind of a deal; in fact, they wanted him to sign a paper that said verything he had created for Marvel in the last fifty years was their property and everything he would ever create in the future would be theirs. In other words, the "contract" was not presented to him, as yours was, BEFORE he did the work. (Jack ultimately signed a much scaled-down version of the contract.)

I understand your question and it's a good one. The answer is that there is a difference between an employee and a free-lancer. (PLAYBOY just lost a huge lawsuit in which they were claiming ownership of a free-lancer's work.) Even though Kirby and Gerber may have been doing all their free-lance work for Marvel at a given point, they were still free-lancers.

Does this clear it up for everyone?

Link here.As to the results of the lawsuit: Well, there was a court decision, and Gerber does not own Howard the Duck. On the other hand, Marvel is supposed to put "created and written by Steve Gerber" in all books featuring Howard. And that's pretty much all we know: The exact details of the arrangement between Marvel and Gerber have never been disclosed.

And just to muddy the waters a bit, artist Frank Brunner claims to have co-plotted Howard the Duck for a few issues, and I've never heard his claim disputed. So Gerber claiming to be sole writer seems to be untrue.

Moving on: Gerber's Moral argument is a little more complicated. This was originally printed on the Howard the Duck Yahoo Group, and reprinted in Rich Johnson's Lying in the Gutters.

As best I can tell, Jonathan is a very nice guy who was acting with the best of intentions. His interest in reviving OMEGA comes out of passion for the material, not purely monetary considerations.

"I misjudged him, and I offer my sincerest apologies.

"That doesn't change my mind about the OMEGA revival itself, however. I still believe that writers and artists who claim to respect the work of creators past should demonstrate that respect by leaving the work alone -- particularly if the original creator is still alive, still active in the industry, and, as is typically the case in comics, excluded from any financial participation in the use of the work.

"Over the last decade or so, it's become the trend in the industry for creators just to let these things slide. By lodging even an informal protest, a creator always risks appearing pathetic and whiny to the fans or threatening to a current employer. No one wants to be thought of that way.

"Remaining silent, however, would implicitly condone the comic book industry's business practices up through the early 1980s and the means by which publishers claim to have procured ownership of characters and story material in those days.

"Remaining silent would also perpetuate the fiction promulgated by publishers that 'we all knew' what rights we were supposedly giving up by signing our paychecks. (In those days, the publishers' favored instrument for acquiring rights to material was a one-party 'contract' printed or stamped on the back of a writer or artist's paycheck. This so-called 'agreement' set forth terms of employment that were rarely if ever agreed to by the writer or artist prior to the start of work.) The truth is, we didn't all know. Most of us had no idea, until the Siegel & Shuster case came to light again in the late 1970s. (In fact, there are serious questions regarding the ownership of 'Omega The Unknown' that Marvel has probably never thought to ask.)

"When a writer of Jonathan's stature agrees to participate in a project like this, he also, intentionally or not, tacitly endorses the inequities of the old system. I've tried for a couple of decades now to convince the rest of the industry that those inequities will end only when writers and artists -- whether celebrities from other fields, like Jonathan, or longtime comics professionals, like myself -- say 'no' to projects that make no provision for the original creators. I've failed. I find that endlessly frustrating.

This post is a follow-up to his original diatribe, which was impassioned but came off as rather silly, even to a huge Gerber-booster like me. (Gerber calls Lethem's actions "unforgivable" and states that he has "made an enemy for life.")

In a recent interview with Wizard Magazine, Gerber says:

So, look-coming at this in a very general way-it would just be really nice if, in the case of a character created by someone who is still living and still active in the industry, the publisher would think to approach the that person and say, "Hey, we'd like to do something new with this character. Would you like to try it again?" How much effort does that take? How much does it cost in editorial pomp and self-importance, especially weighed against the good will it would create?*SNIP*

Now, the Omega matter happened slightly differently. As I understand it, when Marvel approached Jonathan Lethem about writing for them, it was Jonathan who inquired about Omega. Marvel said fine, but the idea didn't originate with them. It still would've been nice of them to call, but the truth is, they were never going to say "no" to a New York Times bestselling novelist in order to get a new Omega book from me.

I want to add, by the way, in regards to Omega, that Marvel and I did manage to reach an accommodation about that character and a couple of others. In the end, they were very reasonable about it, and I consider the matter closed.

Now it would be petty of me to opine as to who did or did not get paid off, especially when I have no source to back up any such speculation. Still, it would be really interesting to here what steps were taken by Marvel to achieve equitability in Gerber's eyes.

He also adds on the Howard the Duck Group.

As I recall, I only requested that the books not be discussed here. If I did suggest boycotting any or all of them, I'm sorry. I shouldn't have. I'm not crazy about the idea of boycotts in general because of what happened to Void Indigo.

Buy and read whatever you like.

Fair enough. But I'm still boycotting... Well, OK, I probably wouldn't care much about Howard or Foolkiller. But I would've picked up Omega, because I am an absolute insane, drooling F-A-N-B-O-Y of artist Dalrymple's Pop Gun War.

Some of this is simple loyalty. Gerber has made some very positive contributions to my headspace, and I OWE him.

But it's ALSO true that I have a lot of sympathy for Gerber's position. If a corporation owes it's existence to the intellectual property created by it's freelancers - Hell, property created by it's employees - It, morally, should acknowledge these creators. Even beyond a one-time paycheck.

And, on the other side, it's certainly fair for the creators to say "Hey. These characters would not exist without our contributions."

But this can certainly seem like a betrayal to mainstream fans, who's loyalty to the Marvel Brand often (usually?) far exceeds their loyalty to individual creators.

(Which, honestly, has always struck me as somewhat bizarre, and I wonder why this doesn't translate to other media. I only watch movies from New Line! Paramount is teh Suxxors!*)

Still, Gerber's "demands" seem very reasonable. A phone call or an e-mail sayin' "Hey. We're hauling your toy out of the toybox. Is that cool?" Even thinking from Marvel's POV this seems to be a fair compromise in return for a marketable intellectual property. Doesn't seem to be a bad deal for keeping a still-active and still somewhat popular creator happy, either.

And, more importantly, it would send the message that creators AND their creations are valued. Marvel has historically been slightly ahead of the curve in this area. And simple gestures of appreciation in this area could cement the House of Ideas current reputation as a company that gives a shit about it's creators.

What am I missing?

How is this not a win-win deal for both sides?

Closing Thought One: Current creators seem far more savvy about the pitfalls of signing over their creations to corporate owners than those from the seventies and before. And I'm wondering if the Gerber lawsuit didn't play some part in this. If so, it seems hard to argue that the lawsuit was not a Very Good Thing for the industry.

Closing Thought Two: On a more universal note, it seems like an easy gesture of respect to list the creators of the primary characters in any comic. (IE: Doctor Fate originally created by Gardner Fox and Howard Sherman. Current version created by Steve Gerber and Matthew Sturges.)

* OK, to be perfectly honest I've got a decent amount of loyalty to the Fantagraphics brand. (Except for the stuff by people I hate.) So I shouldn't make TOO much fun of you Marvel Zombies.

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