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Readers of my comics criticism know that I’m a strong advocate for thinking outside the box of the comics subculture. I ask for comics to be examined from a more culturally rounded perspective, and I do my best to live up to that standard in my own work. I have a polemical bent, and calling out others for being locked into subcultural attitudes has been par for the course. Over the last few months, I’ve felt compelled to extend this to historical and business issues within the field. The most recent examples have been my comments on the summary judgment against the Joe Shuster heirs in their efforts to reclaim a portion of the Superman copyrights from DC Comics.
The verdict was issued on October 17, 2012. Two days later, tcj.com co-editor Dan Nadel linked to Tom Spurgeon’s commentary at The Comics Reporter. (Click here.) Nadel called Spurgeon’s post (click here) “the most cogent analysis” of the decision. I’d read the piece earlier that morning. It was hardly an analysis, and “cogent” was probably the last adjective I’d use to describe it. It featured a rhetorical broadside against DC Comics that misrepresented the company’s dealings with the Shuster heirs in the most inflammatory and Manichean terms. (The key sentence: “It’s darkly, stab-both-your-eyes-out ironic that Warner/DC’s parsimony in forcing an elderly woman to haggle for a 23-year-old’s income with everything she had at her disposal is actually benefitting the company down the line.”) The verdict and the exhibits that provided the history of DC’s dealings with the Shusters were both available online. Spurgeon clearly hadn’t read either. (DC hadn’t forced anybody to do anything, there was no haggling, and at the time she didn’t have anything to legally bargain with.) Worse, Spurgeon hadn’t even paid much attention to the news report he linked to in his opening paragraph; he wrote the piece from the erroneous impression that DC had been dealing with Shuster’s widow rather than his sister. (Spurgeon corrected his references to her after complaints.) In short, the post was ignorant and prejudiced about the case.
Spurgeon obviously buys into the fan-community myth that Joe Shuster and Superman co-creator Jerry Siegel were hapless victims of the greed and villainy of DC Comics. After reviewing the compensation history, one may come away with a different impression. The two earned the 2012 equivalent of at least $5 million from Superman during the character’s first decade. They would have earned a great deal more if they hadn’t filed an unsuccessful lawsuit to regain the property in 1947. (I’ve read the court filings and the preceding contracts. Almost all of the non-speculative grievances were over things they clearly had no claim to, such as money from Batman. The speculative grievances—namely being shorted for monies owed—were determined groundless.) The cumulative income of Siegel, Shuster, and their heirs from a 1975 pension agreement with DC has been the 2012 equivalent of over $6 million. That’s altogether more than $11 million between the two parties in today’s dollars, and the Shusters alone would have stood to make at least an additional $2 million had they not chosen to pursue the partial copyright termination that resulted in the most recent verdict.
If that kind of compensation is what it means to be victimized by DC Comics, please let me know where to sign up. Siegel and Shuster sold Superman outright in 1938. There is no evidence of bad faith in the transaction. For the equivalent today of about $2,500, DC bought a comics feature that no other publisher was interested in. When the commercial potential of the property became apparent, the company voluntarily increased its contractual obligations to the creators. Siegel and Shuster were allowed to participate in the expanded publishing opportunities, and they were given a percentage of the non-publishing licensing revenue. They were extremely well paid before they burned their bridges with a largely senseless lawsuit in 1947 and 1948. They were able to negotiate a new settlement in 1975, and they enjoyed a handsome pension afterward. Their heirs have been treated generously. The two suffered economically during the time between the lawsuit’s end and the 1975 settlement deal, but it’s becoming increasingly clear that they were akin to the lottery jackpot winners who quickly end up in bankruptcy court. Judging from the paper trail of exhibits in the various cases, as well as Larry Tye’s recent book Superman: The High-Flying History of America’s Most Enduring Hero, they were financially irresponsible people who squandered a truly enviable amount of money. (Shuster in particular was quite the spendthrift.) I just don’t see how that’s DC’s fault.
However imperfectly, DC has made a pretty consistent effort to equitably deal with Siegel, Shuster, and their heirs. The company has negotiated settlement after settlement after settlement with them in an effort to resolve matters. That’s why I was especially struck by the end of Spurgeon’s post, where he wrote:
[…] it’s hard for me to see this as a best outcome. I think it’s okay to want best outcomes.
Well, that raises the question of what he would think a best outcome is. Spurgeon doesn’t allow comments on his site, so I sent an email asking on October 19. He posted it with a reply on October 29. (Click here.)
It’s very clear that Spurgeon and I take a very different view of intellectual-property ownership. He obviously feels there is something inherently illegitimate about anyone but the original creator owning a copyright or patent or whatnot. Apart from public-domain laws, I personally see little difference between a copyright and a piece of tangible property such as a car or a house. It’s something that can be sold from one party to another, and the sale should be governed by the basic rule of transactions: If both parties are competent, uncoerced, and acting in good faith, the transaction is inviolable. If the purchaser proves better able to exploit the goods or property than the seller, then good for the purchaser. I think any reasonable adult recognizes this is a possibility in selling anything. If I sell a developer a piece of real estate for $20 per square foot, and the developer, for whatever reason, is later able to sell it for $100 per square foot, the developer is entitled to the money. I have no claim on it, and there’s no reason I should.
I’d be very curious to read the ethical reasoning why the sale of Superman in 1938 should not be binding on Siegel and Shuster. Or why their 1948 decision to give up all remaining financial interest in the property for a cash lump sum was not something they should have to treat with respect. Or why they (and now their heirs) should not be expected to honor the multitude of settlements DC has made in its truly quixotic efforts to find a permanently satisfactory common ground with them. Is it because authors and their heirs should be considered the same as minor children, and therefore not competent to enter into contracts? Or is it because they enjoy some sort of exalted status by which the rules that everyone else has to follow in every other circumstance should not apply to them? Or is there something else?
My guess is that the “exalted status” view of authors is what is guiding this. A related view has managed to find expression in our copyright laws. In tandem with the incessant extensions of copyright protection over the past century or so, a truly astonishing innovation has been introduced: legally mandated time-limited ownership for purchasers, with the original seller having the rights of termination and reclamation. If an author sells his or her copyright to a publisher, the author or the author’s heirs now have the right to invalidate the transaction after a certain period of time. The justification is that the author couldn’t have known the future value of what he or she had sold, so he or she should have a certain amount of time to exploit that at the current owner’s expense. Just imagine if we expanded this to other kinds of transactions. General Motors could legally repossess my prized Camaro without compensating me. After all, to paraphrase Spurgeon, I’ve had it a long time. Why shouldn’t I give it back? GM couldn’t have possibly foreseen that the car would have collector value, so it’s only fair that they be allowed to take advantage of this. By the same token, DC Comics could reclaim all extant copies of Action Comics #1. The company sold them for pennies back in 1938; they couldn’t possibly have predicted that copies would eventually change hands for up to a million dollars apiece. Or should the Siegel and Shuster heirs have the right to reclaim those, too?
This idiotic do-gooder revision to the copyright law is what opened the door to the present litigation from the Siegel and Shuster heirs. And DC is of course fighting this for the same reason I would fight to retain ownership of my Camaro. The property was bought fair and square, and a good deal of time, labor, and money has been spent on its upkeep; it’s wrong that the original seller should be allowed to take it back.
Actually, DC is fighting this a lot harder than I would (or could) for my Camaro, and for a very good reason. I’m not answerable to anyone but myself with regard to that car. DC, though, has a fiduciary responsibility to the shareholders of Time-Warner to protect the company’s assets. They cannot pursue any solution to the Siegel and Shuster imbroglio that does not take the best interests of the company shareholders into account. We’re talking hundreds of thousands—if not millions—of people. This is why none of Spurgeon’s proposed “best outcomes” can ever happen. Any one of them would likely result in a class-action shareholder lawsuit that would, just for starters, prompt the removal of the DC and Time-Warner executives responsible for pursuing any of those “best outcomes.” Those same executives could very well be facing litigation themselves for the rest of their lives if one of those “best outcomes” went forward. There would certainly be litigation seeking to have any of the pursued “best outcomes” set aside.
This is partly why I think “equitable and fair” is preferable to “best outcome.” Any proposed solution has to be reasonably acceptable for Time-Warner’s shareholders. Spurgeon is right to characterize my shift in terminology as “an almost willful renunciation of what [he is] talking about.” Approaching a problem in terms of “best outcomes” allows one to indulge in absurd fantasies. Looking at it in terms of what’s “equitable and fair” requires one to engage with the real world.
Let me end by shifting gears away from the Superman case. We need to try to understand issues relative to all perspectives at play in them. It should be imperative to know where both sides are coming from before reaching a conclusion. Uninformed, knee-jerk partisanship should be avoided. Sometimes parties we sympathize with are in the wrong, and sometimes parties we see as antagonists are in the right. A fuller view of a situation may lead one to decide that one’s initial sympathies are misplaced. As writers and readers about the field, that fuller view should be our main goal. Achieving it the real best outcome, at least for us.
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46 Comments
I appreciate the clarity with which you make your point, but it depends on a assumption about the relationship between corporations and the law that, while not uncommon, is not inarguable. Namely, it’s an assumption that the law provides equal protection. There is another assumption that underwrites the defense of creators, and it proceeds as follows:
While the law is supposed to do this, entities and individuals with money and time (and familiarity with the system) have an advantage over those that do not. Artists and writers are at a distinct disadvantage at most every stage of the negotiation. This leads them to do things that seem unwise and foolish (in the Superman case S&S and their heirs hiring bad lawyers, the heirs resorting to petty extortion). So, depending on what assumption you begin from that fact that their abuses benefit the corporation can be taken either as evidence that the system works, or that it is tipped to favor the big guy.
I agree that this is an area where reasonable people can disagree, but why pick on the little guys for their fiscal impropriety while lauding DC for theirs? First, I’m unconvinced DC hasn’t had its share of bad deals w/r/t the Superman license. The difference is, they have a parent company to fall back on. Also, while DC has a fiduciary to its shareholders, one could easily argue that while this settlement is good in the short term (which is what shareholders and parent companies tend to value) it could very well be bad in the long term (scaring off talent, putting a sour taste in the mouths of certain fans).
A couple of points. I think the GM analogy is flawed. Physical property and intellectual property are pretty different. I think in fact calling intellectual property “intellectual property” is somewhat misleading. Copyright isn’t a property right; it’s essentially a license, the intent of which is to promote creation, rather than to protect or facilitate ownership.
Along those lines..a lot of these issues would be moot by this point if there were a reasonable limit to copyright terms. By the logic of the founders, and really of all logic, Superman should have passed into the public domain long ago along with the bulk of DC’s other major licenses. That would mean that he would belong, not to the Siegel and Shuster heirs (who didn’t have anything to do with creating him), nor to DC (a corporation which has long outlived whatever usefulness or creative spark it might ever have had) but to the public domain and to whatever artists could best be inspired by him. That would be the best outcome, as far as I’m concerned.
I agree with Noah that Supes, along with all kinds of other stuff, should have gone into public domain…
But I also agree with RSM that the attacks on DC’s moral turpitude are somewhat ridiculous given the society we live in (welcome to corporate capitalism!) DC essentially has no choice given the position they are in to fight for the retention of Supes as intellectual property. They DID have a choice about raising salary for Siegel and Shuster, about providing for the heirs, etc. They’ve actually operated surprisingly reasonably over the years, providing millions of dollars to S & S and their heirs when they didn’t have a legal obligation to do so.
Cynically, one could see their willingness to do so as simply PR…and no doubt there’s some of that going on, but, still, to suggest that they’ve impoverished Supes’ creators and stomped all over their decaying corpses is just not true.
True, the millions provided S & S is nowhere near the presumed billions DC has gathered over the years from the property…but, c’mon, are they just going to turn over their biggest (or second biggest) cash cow because it’s the “right thing to do” in some kind of abstract moral/ethical utopia?
The argument I’ve heard recently is that the $130 that National Periodical Publications bought Superman for was actually payment for the initial Superman story, at a page rate of $10 per page for 13 pages. I don’t know if that’s completely true, but it seems to argue for bad faith on the part of the corporation, playing off the naivete of young creators to treat the purchase of a single story as the basis for acquisition of the character and ideas for all time.
And I definitely agree with Noah, that “intellectual property” is very different from physical property, whether an object like a car or a book, or a piece of land, since it’s not something that can be resold once, possibly at a profit, but something that enables a great deal of further sales over a long period of time. Trying to come up with arguments about reclaiming cars or issues of Action Comics is just plain factually false. And why is it okay for corporations to get Congress to pass laws extending copyright indefinitely (far past what the terms were when the rights were initially “sold”), but the idea of creators being able to reclaim the properties after a certain amount of time is so terrible?
Legalities aside, that’s my basic problem with these arguments: why do people come down on the side of the rich, prosperous corporations? Why do men in offices working with figures in ledgers get to profit so much more than the people who actually create the art? You can make all sorts of arguments about the law, and even what is “morally right”, whatever that means, but the majority of people seem eager to side with the big guy, the people who snatch up the creations of others and then resell them to the masses. We fucking idolize the rich in this country, to the point that we don’t mind them making billions off the work of others, and vilify those originators when they try to get a fair share, saying they should be happy with the pittance that has been so graciously granted them. It’s an ugly system, and I don’t understand why people other than the corporate overlords themselves defend it.
Nate–
You write, “entities and individuals with money and time (and familiarity with the system) have an advantage over those that do not. Artists and writers are at a distinct disadvantage at most every stage of the negotiation.” However, this is true of everybody at at least some point in their business and professional relationships. It’s true for the vast majority of people throughout their lives. Dealing with it (and the consequences for good or ill) is part of being an adult. Why should writers and artists (and their heirs) be this privileged class that doesn’t have to take responsibility for their actions?
You also write, “why pick on the little guys for their fiscal impropriety while lauding DC for theirs?” I highlight Siegel and Shuster’s personal recklessness because they and their advocates have built their cause around public pleas for pity. They use the hardships the two (and to some extent their heirs) have faced to shame and demonize DC. By making a public issue of their personal circumstances, they open themselves up to to scrutiny.
Where have I lauded DC for “fiscal impropriety”? If DC (or Time-Warner) engaged in conduct that bankrupted the company, I think they’d be facing a hell of a lot of public criticism for their decisions. And they’d deserve it.
Some parties are in better positions to take financial risks than others. That’s life. If you’re an artist or writer approaching a publisher, more often than not part of the reason you’re approaching them is because they’re in a better position to take risks than you.
Noah–
What is your view of the termination rights that have been introduced along with the copyright extensions?
Despite the Founders’ intentions, the trend over the last century is for IP rights to be treated the same as tangible-property rights. Sonny Bono, who was the prime mover behind the most recent revisions to the law, made no secret of his desire to do away with the difference altogether.
I’m in full agreement with your second paragraph. If it were up to Dictator Rob, there would be two copyright terms. The first would be for 25 years. The second would be for 25 years or the life of the author, whichever is longer. Only the original author would have the right of renewal for the second term, and only if he or she has retained the copyright for the first term’s duration. Corporations and heirs would not have renewal rights. If the original author sells the copyright, he or she would be entitled to a droit moral minimum royalty of 1% of all income from the property and its licenses to the subsequent copyright holder(s).
Noah’s point also suggests what might be in it for DC if it had let Superman fall into public domain, which is that it would have had to have bought and cultivated new, marketable properties. This could lead to innovation (or something better than what we’ve got, which is an excuse to sell pajamas and toothpaste).
RSM
“Why should writers and artists (and their heirs) be this privileged class that doesn’t have to take responsibility for their actions?”
They shouldn’t be. My point is that to the degree the powerful are in a better position to take advantage of the legal system they can put the less powerful in situations where they have a limited range of actions for which they can take responsibility. This applies to anybody that isn’t rich and powerful (artists, carpenters, petty thieves). Given that, arguments for personal responsibility w/r/t the legal system can shade into blame the victim.
I didn’t mean to say that you lauded DC for fiscal impropriety, though I can see how my writing might have implied it. My apologies.
That said, and apropos my comment after Noah above, I do have my doubts that what DC did is really that good for shareholders. But that’s quite speculative and I wouldn’t go to the wall for it.
Nate, I think without its properties, DC would just be out of business. Which I think would probably be a good thing overall.
Robert, I don’t really have an opinion on the copyright reversion, because I don’t know enough about it. I do think your 25 years/25 years, with only authors allowed to renew would be a huge change for the better.
I was interested to hear what Eric would say…Eric, do you know if there’s a scholarly consensus on this? That is, do academic writers generally agree that Siegel and Shuster were not necessarily systematically hard done by?
No…I’d guess the opposite (that most would side with Siegel/Shuster or Kirby or whoever), but I don’t know that at all…total guess.
It is clear and obvious that corporations (like DC and Marvel) profited off the backs of creators to a far greater degree than the creators themselves did. But, these entities exist to make a profit… We shouldn’t be surprised by it. It’s more surprising when they choose to support families, heirs, etc. when they’re not under any obligation to do so…PR or no.
“However, this is true of everybody at at least some point in their business and professional relationships. It’s true for the vast majority of people throughout their lives. ”
This is not true. You’re making it sound like everyone gets into business deals with gigantic corporations. And you also leave out the connections to the greater culture at large. We’re not exactly talking about an isolated small-town regional bank that has poorly paid two of its workers. You’re greatly understating the overwhelming power of these corporations and the literal stranglehold they have on the world’s culture.
I’m sympathetic to many of the arguments that Nate and Steven have made. Big corporations have a lot more power (not to mention access to lawyers) than any comic book artist. On the other hand, I doubt that this imbalance can ever be corrected entirely through the law. At the end of the day, this is a capitalist system, and capitalism creates inequalities.
Part of the solution may be that individuals who are knowledgeable about copyright (such as attorneys or experienced creators) offer free and easily accessible information to artists and writers. So at least they know exactly what their rights are and what they’re giving away when they get in bed with a large corporation.
But when DC made its deal with Siegel and Shuster, they were not quite as much a monolithic corporate behemoth (they certainly weren’t linked to Time-Warner or whatever it’s calling itself now).
Bob Kane, for instance, made a much more advantageous deal, which means that they were willing to make such deals at the time.
“they were not quite as much a monolithic corporate behemoth ”
This is true. But the argument inevitably circles back again. As long as corporations have the ability to change laws to hold infinite copyrights, then artists and/or their families should be able to change deals they signed in order to get a larger piece of the pie. Why should corporations be the only ones who can retroactively change laws?
And in answer to Richard, like Noah says the only fix to the current system is public domain.
“Bob Kane, for instance, made a much more advantageous deal”
Yes, after he sued. Wasn’t he underage? Or at least he said he was?
I agree that DC/Warner shouldn’t have been able to change the law to suit them…but did they? Wasn’t it more a Disney-directed change to copyright law? And…it would be ridiculous to think they wouldn’t take advantage once the law was changed.
Bob Kane got the deal he did in part because his dad was in printing and knew the law well enough to parry with some sharp players (Liebowitz and Donenfeld). He’s the exception that proves the rule.
And its not just big corporations that manipulate the system for their own benefit. It’s relative. A person with a six figure income and some knowledge of system has an advantage if they want to sue someone with a five figure income and less knowledge. The point is that the legal system isn’t wholly blind to power and money.
Following from that, I can’t disagree with Eric that “them’s the breaks in capitalism,” but that doesn’t mean we ought to call those breaks equitable or fair, or that we shouldn’t get out feathers ruffled when it happens. What it is is “by the book” or “legally valid” at one point in history can be deemed unfair at some later point (that’s why laws change).
“them’s the breaks in capitalism,”
One could call it capitalism if one wishes, but given that only corporations are allowed to alter the rules of the playing field one might well enough call it corporate socialism.
” it’s wrong that the original seller should be allowed to take it back.”
But it’s not wrong that corporate entities are allowed to change the rules of copyright? And with no or limited input from artists or the general public?
I don’t like being the “them’s the breaks in capitalism” guy. I think the system is pretty terrible and that corporations are pretty much heartless bloodsuckers. But, in this case, as RSM notes, DC took care of S & S better than could be expected under the rules.
I think it would be great if the system changed…but you can’t blame DC as an entity for working within that system to their advantage, esp., in this case, given their willingness to support heirs and family members who had absolutely nothing to do with the creation of Superman.
So, yes, by all means, I think people should work for an overhaul of the copyright system, for artists’ rights, etc…but is the Siegel and Shuster case currently the best banner to be rallying behind for that purpose?
“But, in this case, as RSM notes, DC took care of S & S better than could be expected under the rules.”
True, but this seems like a pretty low bar
As for the Superman case as a banner, I think that any individual case is a bad banner for large, systematic overhauls, if only because it makes highlighting the plight of the individual makes it easy to either seem benevolent by appeasing them, or to dismiss the case as frivolous.
As an industry North American Comics, which, let’s face it, if we’re talking industry we’re largely talking Marvel and DC, has a lousy record of exploiting the system to their advantage, which in the zero-sum game of capitalism often means the creators get less in the way of compensation than they would in other parts of the culture industry.
If I were a lawmaker, I’d revert copyright law back to the way it was. Now it is inordinately complex, it severely games the public domain intent of the original law, and it benefits lawyers more than copyright holders.
[...] Analysis | Robert Stanley Martin argues that Jerry Siegel and Joe Shuster were well rewarded for their creation, Superman. He calculates that DC Comics paid the creators about $11 million in today’s dollars: “If that kind of compensation is what it means to be victimized by DC Comics, please let me know where to sign up.” And then he goes deeper and examines why so many people regard perceive the court decision as unfair. [The Hooded Utilitarian] [...]
Matthew–
DC wasn’t acting in bad faith in their purchase of the story and the underlying characters. Here’s the relevant part of the sale agreement that was signed:
[...] I hereby sell and transfer such work and strip, all good will attached thereto and exclusive right to the use of the characters and story, continuity and title of strip contained therein to you and your assigns to have and hold forever and to be your exclusive property [...] The intent hereof is to give you exclusive right to use and acknowledge that you own said characters or story and the use thereof [...]
That’s pretty explicit. There was no bad faith on DC’s part.
Jerry Siegel was no naïf when it came to the rapaciousness of businessmen. Corrupt business owners were frequently the antagonists in the earliest Superman stories. There wasn’t anything in superhero strips comparable to the social consciousness on display until the Denny O’Neil/Neal Adams Green Lantern/Green Arrow stories thirty years later.
“Jerry Siegel was no naïf when it came to the rapaciousness of businessmen. Corrupt business owners were frequently the antagonists in the earliest Superman stories.”
I don’t think this is a very good argument. Just because Siegel created fictitious evil business owners doesn’t mean that he expected to deal with such hyperbolic villains in real life, nor that he was in any way prepared or competent to do so. I’d agree that the early Superman stories were quasi-Marxist — but again, just because you come from a socialist family background is no reason to think that you’re going to be in any way competent to negotiate a decent contract.
I also think looking at the language of the contract doesn’t necessarily tell you everything about bad faith or lack thereof. We don’t know what DC said to Siegel and Shuster; we don’t know what they thought their options were or weren’t. Again, this goes to the issue of disproportion of power. A large corporation which signs contracts all the time and has access to competent legal counsel is just in a much better position to negotiate than a couple of very young guys making their first major sale.
I think it’s possible to argue that Siegel and Shuster were exploited and had some legitimate grievances…and that, noentheless, DC treated them in many ways relatively honorably.
Thank you for offering an alternate take on the case. I don’t agree with everything said here, but I think your analysis is a good balance to the one-sided approach many take to this and similar cases.
Noah–
I bring the content of Siegel’s work up only to rebut people who presume to know his mindset. Just because he was 23 at the time doesn’t mean he was naïve; Will Eisner at that age was savvy enough to negotiate ownership and other rights to The Spirit. Siegel was a competent adult in any case.
The only reason people call him and Shuster “naive”–and it’s been a standard meme for decades–is to manipulate people’s emotions in an effort to demonize DC. It doesn’t come from any knowledge of them as people.
We know the circumstances surrounding the signing of the contract. DC’s owners were shown the Superman material by an outside party who had received the proposal. DC already had a business relationship with the two, and they mailed the contract and a check to Siegel in Cleveland. He and Shuster hadn’t otherwise been contacted about it. They cashed the check, signed the contract, and sent it back.
They were in a position to vet the contract with a lawyer. I gather they didn’t, but I don’t see how that was DC’s fault.
It wasn’t their first major sale. They’d been doing features for DC for over two years at that point.
Simon–
Thank you.
>> What is your view of the termination rights that have been introduced along with the copyright extensions? >>
I’m not Noah, but I think they’re a necessary corollary of the extensions.
When someone buys an intellectual property, they’re essentially licensing it for the term of copyright, after which point it goes into the public domain. So they were never buying it “forever,” they were buying it for a clearly-defined number of years.
If Congress extends copyright, they’re changing the deal, making their license last longer. The reasoning behind the termination rights is that if the term lasts longer, the purchaser never bargained for that extra period. So who owns the IP for the extended period? It was supposed to be the public, but it isn’t. So should it be the purchaser? The creator? Someone else?
The solution they came up with was to give the creator an opportunity to reclaim the property for that extended period, rather than simply to give the purchaser that extra chunk of ownership time for free. If you’re going to extend copyright in the first place, that seems reasonable — when the company that is now DC bought Superman, they did not have any expectation that they would still own him today. So them owning him today is not part of the initial deal — it’s an artifact of copyright extension, and not something they ever bargained for in good faith. And having the government just hand it to them is a preposterous transfer of value from the public to corporations. [Not that the copyright extension wasn't a preposterous giveaway anyway, but it's slightly less preposterous this way. If the deal is going to be made longer, then the terms have been altered, and the other terms should be subject to renegotiation too.]
This all extends from the copyright extension, but it makes sense. If you’d only leased your Camaro for a period of time and the government decided that the lease was going to be extended, you wouldn’t expect that the extension would be free. Not that the Camaro comparison makes any sense — you own that Camaro, but you don’t own the right to make sequels to it, to spin off a line of She-Camaros and the Legion of Teen Camaros and Camaro’s Girl Friend Caprice. Those rights remain with GM.
Still, Congress was giving away what belonged (or would belong, after copyright expiration) to the people, so as the people’s representatives, they got to decide whether to give it to corporations for free or to make it possible to renegotiate the term at the point the deal would have ended under the old rules. It’s almost shocking that they didn’t wholly benefit corporations, but it’s logical that they didn’t — it’s not merely that nobody knew Superman would still be valuable today, it’s that nobody expected Superman to still be an ownable property today, so if he is, there’s room for other changes.
I think copyright lasts too long. I think 25 years for corporate copyrights is too short, but somewhere in between there’s probably a good number. Good luck to anyone trying to get that past Congress against the will of Disney, though.
And I think $11 million is a lot of money, but it’s a fraction of what Superman should have earned for its creators. As a comparison, CARRIE was an early sale, too, and the deal was weighted heavily toward the publisher, but it’s made its creator a lot more money than the first couple hundred pages of Superman. Or TO KILL A MOCKINGBIRD, to pick another first novel. That the Superman creators were profligate with what they got doesn’t mean it was enough — and while they might well have been legally stuck with it, DC shouldn’t be any less stuck with copyright expiration and/or reversion, but as noted, corporations change the rules in ways we’d call greedy if it was individuals doing it.
The freaky part is, the value in having Bob Kane happy and pro-DC versus the expense and public-perception damage of having this kind of case go on is a monetary issue, too, and it’s not like this stuff came as a surprise. The point at which to head off this kind of case — not just for Superman, but for Kirby creations and Gardner Fox creations and so forth and so on — was ten years before the termination window opened, and through something more generous than a nice pension that’s dwarfed by the scale of the profits rolling in.
These days, of course, contracts are written to get around the specter of potential future copyright extension and reversion, though who knows whether that’ll be held to be legal in decades to come? If it doesn’t, I expect that we’ll be hearing that creators who take advantage of changes in the law are greedy, while corporations taking advantage are being fiduciarily responsible.
So it goes. And $11 million is a lot of money, but how much of the $4-plus billion George Lucas is getting is about the IP rights to STAR WARS? Lots of heated argument to be had on that, I’m sure — but circling back to the start, I think termination rights are an artifact of extension. If termination shouldn’t be allowed, then extension shouldn’t have been, either.
In which case, Superman would have entered the public domain in 1994, and been free for anyone to use for the past 18 years. Every day of DC’s ownership of the character since then (plus the years of ownership still to come) was a gift given from the public to DC, and one of the restrictions we put on that gift was that the creators had the right to take it back during a particular window.
Considering the value of that gift, the public had the right to put whatever strings they wanted on it, really, and if one of those strings was that Siegel and Shuster and their estates got a shot at benefiting from that gift too, that’s not really so bad.
Kurt–
Thanks for the considered response.
I’m just as opposed to the copyright extensions as the termination rights. If I had my druthers, Watchmen would be entering the public domain about now. Star Wars would already be there.
However, the goal behind the copyright extensions, or at least the most recent round of them, is ultimately to make IP rights the same as tangible-property rights. Sonny Bono was the prime mover in Congress for the most recent copyright legislation. As I recall, he said that if the Constitution didn’t allow for copyright to last forever, then the goal should be for copyright to last forever minus one day. I also seem to recall Jack Valenti, then Hollywood’s top lobbyist, saying something similar.
When I brought up the examples of my car and copies of Action Comics #1, I did so to highlight why one might find termination rights objectionable. If one extended these new IP rights to the tangible-property realm, one could hypothetically be dealing with the situations I describe. And since our society is trending toward making the two property realms the same, I do think my analogies are reasonable analogies to make.
I don’t like the idea of termination rights in general, but they’d be more acceptable to me if 1) they weren’t retroactive; and most importantly 2) they didn’t open the door for people, such as the Shuster heirs, to abrogate existing contracts that were agreed to in good faith. I strongly object to laws that promote unethical behavior.
You write that Superman should have earned more for the two creators. Well, it would have if they hadn’t been short-sighted. I’m not talking about the 1938 agreement here, either. Siegel and Shuster had been contractually guaranteed a percentage of the licensing income from Superman. They gave that up when they settled their lawsuit against DC in 1948. They agreed to set aside all existing contracts in exchange for a lump-sum payout. At that point, Superman had already been adapted to radio, animation, and live-action film. They had a pretty good idea of what they would be walking away from. However, they decided now money was worth more than later money, and voluntarily gave up what they could have made. Stephen King and Harper Lee didn’t do that.
In general, I’d also like to note that what prompted the original post wasn’t so much termination rights or the Shuster heirs’ lawsuit per se. What irks me the most is the demagoguery and falsifications that surrounds this and related subjects, such as the various Jack Kirby matters. Can we at least have a stop to that?
>> However, the goal behind the copyright extensions, or at least the most recent round of them, is ultimately to make IP rights the same as tangible-property rights.>>
I think that would be a terrible thing, and if Sonny Bono wanted a world in which Dracula, Tom Sawyer and Zeus were owned and controlled forever, he was an idiot. But I don’t think the Camaro example works anyway — if you treat them the same, buying a Camaro gives you the right to make new Camaros, and copyright couldn’t be sold because it wouldn’t functionally exist. If IP rights are the same as hard-property rights, then I’d be able to publish my own Legion of Super-Heroes stories by dint of owning a set of the comics. If you can’t separate the two, that’s where you are. If you can separate the two, then the Camaro comparison is absurd.
But it might be interesting to look at the push the other way, which is to make hard-property rights more of a license and less of a purchase, which Amazon seems to be pushing for, and the big movie studios seem to like, too. On that score, I do lease one of my cars, and it doesn’t bother me at all that the lease will end and I’ll have to give it back.
Either way, the push to hand more rights to corporations and take them away from both the public as a whole and individuals as individuals seems like a troubling road to go down.
>> What irks me the most is the demagoguery and falsifications that surrounds this and related subjects, such as the various Jack Kirby matters. Can we at least have a stop to that? >>
If it wasn’t for demagoguery and falsifications — and outright ignorance of the “My daddy worked for Bayer all his life, where’s his royalty on aspirin? Freelancers don’t deserve anything even though they didn’t get employee benefits either!” stripe — there’d be no internet left at all.
Or to put it another way: I doubt it.
RSM,
There are falsifications and there are speculations and there are interpretations in all cases involving contracts and comics. This is because people lie (on both sides), because people need to reconstruct events from archival data, oral histories, secondary sources, etc., and because even people have a direct line to an event (because they were there), their preconceptions inflect their experiences and recollections thereof.
I think it is reasonable to ask that we stop with falsification, but I think it is unreasonable to asset that speculation and interpretations are the same as falsifications. In other words, people on both sides of the Kirby argument have a nasty habit of deriding the speculations and interpretations of the other as falsifications, when they are in fact defensible interpretations of events.
Frankly, what I’d like to hear from you is whether you think that, all things being equal, comic companies have done well by the creators under their employ, and that their legal victories reflect what are more-or-less good practices under the law, because this is what you imply in the article. On the other hand, in the comments section you seem open to the idea that the law, on occasion, can be a(n) ass. That being the case, are you suggesting that all of this needs to be decided on a case-by-case basis? And if so, why is it that in your public writings on the comics industry you’ve rather consistently come down on the side of the company.
I want to stress that I’m not interested in antagonizing you, but you’re starting to get a little slippery here… I have no doubt that there has been some demagoguery and falsification w/r/t the Superman case, but you didn’t cite enough of it for your article to be about that. Instead, your article was a defense of DC.
Kurt, just fyi, as far as I can tell, Sonny Bono was in fact an idiot.
>> Kurt, just fyi, as far as I can tell, Sonny Bono was in fact an idiot.>>
I like to leave a smidgen of room for doubt.
The best argument I’ve heard for copyright extension is the Irving Berlin rule, which argues for some sort of “life-plus” structure, like the ones most of the world uses. The worst argument is that it’s property so it should be treated like property — the foundation of copyright is that it enriches the public domain, and we use _temporary_ exclusivity to spur creation. But “temporary” is crucial in that, just as it is in patent law.
Then again, if Bono had been a chemist rather than a singer, he might have tried to extend patent life. Of course, if he’d been a chemist, he’d never have gotten elected to Congress.
I actually like (some of) his music. Not arguing that he was completely worthless in every respect or anything….
He co-wrote “Needles and Pins.” That’s a good thing.
Doesn’t give him a keen insight into intellectual property rights that seemed to go beyond “I want to profit forever,” though.
Nate–
I think everything has to be judged on a case-by-case basis.
With the lawsuits, I’m pretty familiar with the Marv Wolfman, Kirby heirs, and Shuster heirs cases. In each one I think the courts have made the correct call. I don’t know enough about the Joe Simon, Dan DeCarlo, or Siegel heirs cases to feel comfortable commenting.
With DC and Marvel, I think creators generally do all right when they don’t lose sight of the fact they’re in an employer-employee relationship. It’s not an author-publisher relationship such as Jaime Hernandez has with Fantagraphics or Chester Brown has with Drawn & Quarterly. When the creators forget this is when they tend to have problems.
There are always editors who are jerks. From what I know of Robert Kanigher and Mort Weisinger, I wouldn’t want to deal with either on their nicest day. Rick Marschall has made a very positive contribution to the field overall, but his conduct as an editor at Marvel was pretty disgraceful. I’m not sure there would be comic-book publishing in this country today if it weren’t for Jim Shooter, and I think he did a lot of good for creators on an individual basis. But I gather he got pretty wacky the last year or so he was at Marvel.
As far as not taking the companies’ side goes, I think Martin Goodman was wrong not to give Lee, Kirby, and Ditko a royalty interest in the properties they co-created. The same is true of Perfect Film/Cadence with creators and new properties before Shooter set up the character-creation royalty program. Marvel’s Silver Age original-art inventory should have been returned to the artists when the company began returning the contemporary work in the mid-’70s. After the 1976 copyright law took effect, DC was wrong to tell creators that the indivisibility rule was the reason the company couldn’t offer creator ownership of new properties. DC is wrong to publish Before Watchmen. Marvel needs to pay reprint royalties without creators having to chase them first. There’s plenty to fault the companies for.
>> I think creators generally do all right when they don’t lose sight of the fact they’re in an employer-employee relationship.>>
Of course, creators _aren’t_ in an employer-employee relationship, and publishers are careful to make sure they aren’t, or taxes, retirement, vacation time and other such issues would crop up.
Creators in comics have historically been in a purchaser-supplier relationship, except for the times publishers see an advantage in arguing that they’re like employees when it comes to responsibilities but not when it comes to benefits.
I have an publisher-author relationship with DC on ASTRO CITY, and a purchaser-supplier relationship on BATMAN: CREATURE OF THE NIGHT. I’ve never had an employer-employee relationship with them on anything.
[I have with Marvel, for two years in the late 1980s.]
But I think it’s important for creators not to lose sight of the fact that they’re not working _for_ publishers, they’re selling _to_ publishers. It really is a key difference.
It’s an employer-employee relationship in the sense that creators are doing work at the company’s direction and approval. That’s what I meant. I didn’t mean to suggest people were necessarily working on staff. I’m sorry if I gave that impression.
There are employer-employee relationships that don’t work that way, and non-employer-employee relationships that do.
I think it muddies the water (in a way that works to the publishers’ advantage) to blur the distinction between suppliers and employees, so I think it’s worth being careful not to do it; even moreso for freelancers to be careful not to make that mistake about themselves.
Thanks for the clarification, in any case.
RSM,
Thanks for providing a thorough answer to my question.
RSM — I don’t think publishing “Before Watchmen” was wrong if “Watchmen” is, in fact, DC’s property. They could publish “Watchmen Babies” if they felt like it.
To everyone–
When I’m talking about Marvel and DC in the last few comments, I’m talking about their traditional company-owned publishing lines, not the divisions for creator-owned material such Astro City.
Nate–
Thanks.
Russ–
I have a problem with Before Watchmen for two reasons.
One, it appears very likely DC acquired the copyright under false pretenses. At the time, they were telling creators the indivisibility rule that was done away with in the 1976 Copyright Act was still in effect. From DC’s perspective–and I don’t think unreasonably–that rule made creator ownership untenable given that most of the company’s interest in any property was in the licensing possibilities. But since the rule was history as of 1978, they shouldn’t have been telling creators after that it was an obstacle. I don’t know if they pulled that routine with Moore and Gibbons, but the possibility can’t be discounted. And since Moore and Gibbons live in England, the two would have had a devil of a time checking out DC’s claims on their own.
Two, there was at least the equivalent of an oral agreement to not do spin-off comics without Moore and Gibbons’ permission. It held for 25 years, and I think it’s shabby of the company to turn its back on it now.
Two things:
1) Kurt Busiek, is, as always in these debates, the real voice of sanity.
2) It’s odd that in the case of Moore/Gibbons RSM is willing to make allowances for oral assurances that were given to the creators and then violated, but isn’t willing to consider the evidence that there were also oral assurances given to Siegel, Shuster, Kirby, Ditko, etc.
Jeet–
1) I wouldn’t go so far as to suggest that Kurt was the only voice of sanity chiming in, but I’m quite glad he did.
2) There’s considerable evidence of those assurances beyond just taking the word of the creators, such as Dick Giordano’s remarks about the matter in TCJ 119, Jenette Kahn’s reported ixnaying of Watchmen spin-off proposals, as well as the quarter-century that passed–coinciding with Paul Levitz’s departure–before Watchmen spin-off comics were published. The proof is in the pudding.
Do you care to relate the “evidence” with regard to Siegel & Shuster, Kirby, and Ditko?
While we’re waiting for Jeet, I’ll relate what I know about Siegel & Shuster, Jack Kirby, Steve Ditko, and supposed broken agreements.
With Siegel & Shuster, there are no claims to the best of my knowledge. Beyond the terms of the written agreements, all Siegel ever alleged was that DC head Jack Liebowitz promised they “would be fairly treated.” This is per his March 1, 1973 affidavit in the lawsuit the two filed over copyright renewal of Superman.
With regard to Jack Kirby, I know that Joe Simon has alleged that Martin Goodman stiffed him and Kirby on promised royalties for Captain America back in the 1940s. However, no formal action was ever taken over it, and to the best of my knowledge there is no evidence corroborating Simon’s claims. That doesn’t mean he’s wrong, just that there’s no proof he’s right.
To the best of my knowledge, Jack Kirby has never alleged that Marvel violated any agreements regarding his ’60s and ’70s work for the company.
Steve Ditko has made no public allegation of broken promises, either. Robert Beerbohm has claimed (click here) that during a 1969 telephone conversation, Ditko said he quit Marvel over the failure to pay promised royalties, although Beerbohm also acknowledged the statements were “cryptic.” The call was not taped. Beerbohm also says Ditko later contacted him and asked him not to print anything that was said during the call. I think it has to be allowed that perhaps Beerbohm’s recollections are off, or that Ditko made possibly inaccurate statements he quickly realized he shouldn’t have put out there.
I don’t doubt the possibility that Ditko felt he was morally entitled to royalties from the licensing efforts that became known just before he stopped doing work for Marvel. But that’s not the same thing as being promised royalties. Martin Goodman’s apparent attitude was that since he was putting up all the money, he was entitled to all the money that was made. As far as he was concerned, Ditko and the others weren’t entitled to anything beyond their page rate.
As far as I know, Goodman also made no active effort to license the Marvel material. The animation people and so on came to him, not the other way around. Goodman apparently saw the licensing offers as nothing more than quick, free money, and never gave the contracts much scrutiny. The animation people and later observers are unanimous in their astonishment at how much Goodman was willing to agree to. It seems he just signed whatever contract he was handed.
In short, I doubt any actual royalty promises were made to Ditko, Kirby, or anyone else.
Here’s a new wrinkle: http://www.tcj.com/harvey-kurtzman-estate-and-al-feldstein-file-to-regain-classic-ec-copyrights/ I have no idea what the “correct” answer is to disputes like this, but I find the current wave of creators attempting to regain ownership from corporate employers fascinating, and heartening, at least from the perspective of somebody who values creativity over profit.
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