Understanding "Incarnate" & Comic Book Plagiarism

Undeniably, the comic book industry currently has its fair share of copycats, and has for a long, long time. Young artists often learn the craft of cartooning by copying pages and panels from established masters (and are often encouraged to do so as a learning exercise), and a multitude of current working artists in the mainstream litter their work with visual nods and references to past creators and comics. Sometimes, that work is done as an open and credited homage, but often the practice known as "swiping" comes about through more dubious practices. All these facts come to bear when claims of outright plagiarism are made in today's comics space, as with the highly publicized case of Nick Simmons' Radical publishing release "Incarnate" and it's apparent theft from Tite Kubo's best-selling Viz manga, "Bleach."

Last week, fan websites began comparing Simmons mini series artwork with "Bleach," pointing out the many nearly identical panels as well as striking design, story and dialogue similarities. In the immediate, the controversy caused Radical to halt sale of a planned "Incarnate" trade paperback while more and more bloggers and commenters came out to condemn Simmons work as the cartoonist and reality TV star himself released a statement denying wrongdoing and citing inspiration from "Bleach," but not outright theft. With all the continued talk, it's almost certain that "Incarnate" won't move forward as a publishing project, but understanding whether or not legal action will be taken against Simmons and Radical - especially given the industry's longtime acceptance of swiping - gets much more complicated.

To help parse the details, CBR News went to comic book legal expert Michael Lovitz of Los Angeles firm Buchalter Nemer for some context on what this all means. "I think you have to first recognize that comics should be no different than any other literary medium or visual medium, because they're both," Lovitz explained. "So when we look at the defined term for plagiarism - and plagiarism does have a specific, legally-defined meaning - it involves appropriating the composition of another, or parts and passages from their writings or the ideas and language, and then passing those off as your own. Not only am I taking it, but I'm saying, 'This is mine. I created this. This is new to me.' So when we see some of these homage-type covers...a repeated reference to 'Crisis on Infinite Earths' #7, for instance. Whether it's on 'Mighty Mouse' or something else, there's usually a reference which says 'After Perez' or 'Thanks to Perez' or whatever that might be. By having that kind of acknowledgement, it avoids the plagiarism issue from a legal perspective.

"Something like what's going on with Radical and 'Incarnate,' it's a case where you've taken a piece of somebody else's work - pretty much an identical taking - but claimed that it's your own, when in fact, it's not. The whole concept of 'swipes' - as you hear them referred to in the comic book industry repeatedly - is kind of a tricky one. If you go to the music industry and there's sampling, people will say, 'You can take so much for free, and then you're in trouble.' The reality is that that's not true. Taking other people's work is still misappropriation, being plagiarism or otherwise. In music, you have to pay for the sampling, but there is no similar setup here in the comics industry. So how much taking is too much? Ethically, any taking is too much in the case of plagiarism. In the case of copyright infringement, that's a different standard. I think there has to be more taking than one panel here or there."

While many point to panel-by-panel comparisons between "Incarnate" and "Bleach" as proof of plagiarism, Lovitz said that building a full case in the comics medium that will hold up in court would involve more than simply showing the physical cartooning as many websites have. "There's a fine line where ideas can't be protected by copyright, only specific expression. If I'm borrowing a loose plot like where we talk about with Hollywood pitches - 'It's "Back to the Future" meets "Forrest Gump"' - and I said that to 100 different people, they would come up with 100 different actual stories that involve that kind of a mashup. It's not enough to talk about very vague, broad plot points. But if 'Incarnate' is lifting specific and delineated plots from 'Bleach,' and action or dialogue sequences, I think that weighs more heavily in supporting any kind of claim of plagiarism. 'Gee, I took one panel' gives you the argument of, 'How many ways are there to draw a man laughing manically?' But when you look at how he's dressed, look at the positioning and this and that...when that's just point one that you add to the other nine, ten or 100 points, it's a much stronger case than happenstance. It's more than, 'It was just in the back of my head, and I didn't realize when I drew it.'"

Even if a very detailed comparison between two works reveals a litany of similarities that fall outside the realm of simple inspiration (as is often the case, not just with "Incarnate" but across comics as a whole), then why don't readers see more cases of lawsuits demanding compensation - or at least the cessation of publishing - when a plagiarized work appears? "I think the easy answer to that is that the comic book industry seems to be a more forgiving industry," Lovitz said. "One can only guess as to why that is. If I had to speculate, I'd guess that it's a forgiving industry because it's happened in the past and is going to happen again in the future. Unless it's a blatant or substantial plagiarism, I think people are okay. A swipe of a panel or a pose here and there might be made fun of - I know there was a period where Rob Liefeld was made fun of - but it happens...I know there's been talk about Greg Land and whether he borrows too much from some of his photo references when doing shots in his comics. The first time you see one of those, you go, 'Oh, maybe he just saw that photo or a cover recently and he was just inspired by it.' But when people say there's a pattern, it makes you wonder what's going on here.

"People who are in the comic book industry are generally comic book fans, and as big fans of Kirby or whoever, they have their inspirations and their childhood loves, and they take that and channel it through their work," Lovitz continued. "Sometimes it's intentional and sometimes it's unintentional, but that has been the case and will always be the case. That's why I think we're a little more forgiving. Usually what you see in terms of people objecting is when it's outside the industry where things are being taken from. An example is the 'Doctor Strange' cover that used an Amy Grant album cover. Once you're outside the comic book industry, those people are going to notice more and take more objections. On the other hand, if a John Byrne cover from his Superman run and a panel inside your issue of 'Doom Patrol' appears to look similar [to the cover], maybe that's not as big of a deal."

In the past, when the comics industry has seen accusations of plagiarism and theft, from the all too common taking of web comics illustrations for mass market t-shirts to more specific character cases like recent action involving similarities between "Nate The Great" and "Emily The Strange" a lack of funding for full legal action on the part of cartoonists is often a stumbling block. "Certainly it's difficult for individual artists to be able to afford the legal bills it takes to take on these infringers and plagiarists," Lovitz said, although with "Bleach" being such a massively successful franchise, it seems unlikely that financial issues would hinder the filing of a lawsuit should Kubo and his associates decide to take action.

So where does that leave Simmons, Radical and the rest of the players in this case? At this point, the ball is well in the court of the "Bleach" copyright holders as far as whether they want to pursue legal action or let the matter slowly die. Though Lovitz explained that even if they decided to push back in court, their options for who to sue are varied and complex. "If I'm the person objecting, the first person I'm going to look to is the publisher, partially because the publisher is going to have deeper pockets, generally, but also because, when it comes to this type of a claim, pretty much everybody along the line is potentially liable - the creator for creating it, the publisher for publishing it, the distributor for distributing it and the retailers for selling it.

"Now, the reality is that if someone wants to go after these people, do they have indemnifications? For instance, the retailer and distributor are going to look to the publisher and say, 'You sold this to me. You have to stand behind your product.' Similarly, the publisher may say, 'You signed a contract with us saying this work was original and new to you and didn't infringe anyone else's rights.' Assuming they had such a contract - because some publishers do and some don't - they're going to look just to the creators. That's something that will filter out after the owner of 'Bleach' goes, 'I'm going to name everyone worth naming,' which I'd say will be just the publisher and the creator."

Until that day comes, Lovtiz concluded that "Radical did the smart thing at this point and stopped sales until it's all figured out, but it'll be interesting to see what the next step could be, whether it gets quietly taken away or stepped up a notch."

Continue to check back with CBR for more info on the "Incarnate" controversy as it comes to light.

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