A bit back, Sean Michael Robinson talked about a production of the Diary of Anne Frank that interpolated the music of the Carpenters. Sean noted that the production was wonderful, moving, inventive…and also illegal.
Anne Frank’s words, however, and the translation of her words on which we were relying for much of our text, were a different matter, as was the authorized play (Diary of Anne Frank), which provided much of the rest of the text. All of these elements are still under copyright, and will continue to be so for several years. (In fact, copyright in the theater is more restrictive than in almost any other field. You can, after all, read a book or listen to an album any way that you wish once you’ve purchased a copy–but to publicly perform a play one must conform to a dizzying array of limitations set out by the author or the author’s agents–usually, that every word of the play will be performed, i.e. no cuts or insertions without permission, and that the appearance, gender and even staging etc will honor the stated intentions of the author regarding the script and contract.)
Sean’s prescription — with which I agree, is that we need to rethink our insanely restrictive copyright laws in order to make it possible for people to reimagine older works, and create new ones, without having their asses sued off.
This does bring up a rather uncomfortable issue for me, though. Mainly…if I think that art is built out of other art, and that the copyright laws should reflect that, then what exactly is the deal with my recent article on Slate, where I discuss my deep disgust with DC’s Before Watchmen? After all, as Jones pointed out with his usual logician’s obsessiveness, Alan Moore has ripped off everybody from C.C. Beck to H.G. Wells, and probably other people whose names begin with A, X, Y, and Z as well. If I think high school kids should be able to mash up Anne Frank and the Carpenters, and I think that Alan Moore should be able to mash up Dorothy and Wendy and Alice (which is probably not the best word choice there, but onward), then what exactly is the problem with having DC put out a new! Watchmen! prequel! — or for that matter, a Watchmen toaster? Isn’t there some moral inconsistency here?
Possibly. But let me try to think through the differences.
— First, it’s useful to remember the purpose of copyright. According to our Constitution, the purpose is not to protect creators. The purpose is to encourage art. Copyright is supposed to give creators a monopoly on their own works so that they will have a financial incentive to create those works in the first place. If as soon as you write something, everybody else can publish it under their name, then you’re going to limit the people who will write to hobbyists who don’t need the money. (Not that there’s anything wrong with hobbyists, he says as he writes for free on his blog. The point is just that ideally you want to encourage other kinds of writing as well.)
However. Giving someone an infinite monopoly on their work also limits creation. It makes it hard to comment on older works, or to remix them, or to use them as inspiration for newer works. That’s why copyright is limited; so that works will eventually enter the public domain where they can be used by other artists with no strings attached to make things like League of Extraordinary Gentleman…or what have you.
The point is that there’s no particular contradiction between arguing that, on the one hand, Alan Moore is being screwed, or that, on the other hand, basing a work on Bram Stoker — or even on C.C. Beck — is okay. I’m personally in favor of a copyright of about 50 years from date of publication — which would mean Watchmen would still be under copyright, but that a lot of works Moore has lifted from would not be. A fifty year copyright would also put Anne Frank out of copyright…though not the Carpenters.
— Second, even when works are under copyright, I think there needs to be a vigorous fair use provision. Such provisions can include, for example, flat fees for using music (like the Carpenters) without giving the creator veto power over how or where that music is used (which, yes, would mean that idiotic republican presidential candidates could use Bruce Springsteen’s songs if they wanted even if the Boss objected. I think that’s a reasonable price to pay for a vigorous public domain, personally.) I also think that in situations where there is no profit, as in Harry Potter fan fiction, for example, most bets should be off.
Soooo…again, how is all of this different than DC publishing Before Watchmen…or than Marvel using Jack Kirby’s characters (which are certainly on the verge of my 50 year timetable) without paying him?
Which brings us to my last point.
—The issue with DC and Marvel is not that they are creating new work using somebody else’s characters. As I’ve suggested, artists do such things all the time; it’s a big part of how art is made. Without it, we wouldn’t have Shakespeare, much less Alan Moore.
So the issue with DC and Marvel isn’t use of the characters. The issue is, specifically, lousy business practices. Moore and Kirby never got to exploit the copyright for the characters they created; instead, Marvel and DC used crappy contacts, evil industry practices, and disproportions of power to gain the benefits of the law for themselves. So it’s not that Marvel and DC shouldn’t use those characters. It’s that they shouldn’t be able to reap a monopoly windfall for using those characters based on dubious business practices.
And, in a bitter but by no means isolated irony, the excessively insane draconian provisions of our copyright law mean that the creators are actually much more extensively screwed than they would be if copyright were reasonable. If copyright were only 50 years, Marvel would be in the process of losing its rights to its properties one by one — which would mean that anybody could make a Spider-Man movie or an Iron Man movie, which would make Marvel essentially worthless, which would mean it would go out of business — which wouldn’t benefit the Kirby family financially, of course. Still, you’d think his ghost would at least get a kick out of it.
In any case, the point is: the creators working on Before Watchmen are not despicable because they are using someone else’s art to make art, because that’s what all artists do. They’re despicable because they are knowingly helping DC exploit a monopoly that was obtained by fucking over the people who created it — and because one of those fucked over creators has verbally erected the equivalent of a picket line. Hughes, Straczynski, Cooke, et. al. are not thieves. They’re scabs. I hope that’s a comfort to them.
Ha, nicely summed up, Noah.I agree %100.
Did you know copyright in America was initially only for 14 years? And America didn’t recognise other countries’ copyright, which hampered the development of American literature — a publisher could print Dickens for free, so why should he pay a royalty to a native author?
As for other intellectual property…patent law is horribly screwed up in the States.
Huh…I thought it was initially 28, with the option to renew for another 28…but perhaps it was 14 with an option to renew for 14….
More or less agree with this. What really irks me about DC/Marvel isn’t that they continue to use classic characters – it’s that they have exclusive rights to use those classic characters. So if someone had a great idea for a Superman story (stranger things have happened) but didn’t want to work for DC/Time Warner, they can’t write that story or they’ll get sued. Or, as you said, they write it as fan fic and make no money, so DC/Time Warner ignores them.
Though I’m curious what you (or anyone else who cares to comment) think of the transfer of intellectual property rights. Should creators have the right the sell their IP rights (say, to an entertainment corporation) the same way any of us can sell a chair or a car? Or should IP be treated differently than physical objects?
I sell my intellectual property rights all the time. If you go on Amazon, I’m listed as the author of 20 or 30 books for Gale/Cengage. I don’t have any rights to any of them.
Which I think is fine; they’re all work-for-hire projects; editorial controls how they’re put together and what goes in them, and I don’t feel any proprietary interest. I’m not bringing original creative effort, and I’m not supposed to be.
The problem comes when work that is not actually work-for hire — where the creators have a wide degree of creative input, such that it makes sense to say that the characters are “theirs” — is contractually turned into work for hire. Superman was made before Siegel and Shuster signed with DC, for example; saying that that work is work-for-hire is basically a legal lie, which is to say, it’s a lie. I don’t think people should be able to classify work as what it isn’t…which, yeah, means that it shouldn’t be possible for Marvel and DC to build their companies on essentially lying about their relationships with creators.
So the issue with DC and Marvel isn’t use of the characters. The issue is, specifically, lousy business practices. Moore and Kirby never got to exploit the copyright for the characters they created; instead, Marvel and DC used crappy contacts, evil industry practices, and disproportions of power to gain the benefits of the law for themselves. So it’s not that Marvel and DC shouldn’t use those characters. It’s that they shouldn’t be able to reap a monopoly windfall for using those characters based on dubious business practices.
The situation with Kirby isn’t as stark as you’re portraying it. You’re not taking into the account the legal and ethical realities of publishing in the 1960s. The major problem with how Marvel dealt with Kirby (and Ditko, too) is that the creators were given no back end. They received no income from their material apart from their page rates.
Kirby co-created his Marvel characters back in the 1960s. Back then, it would be extremely unusual for any periodical publisher, including that for a highly reputable publication such as The New Yorker, to grant copyright to contributors. That was the ethics of periodical publishing at the time. Kirby was no more likely to own his work for Marvel than Dwight Macdonald was to own the articles he wrote for Partisan Review.
With operations such as comic-book publishers and newspaper syndicates, they had good reason to insist on copyright. The brass-ring for income from the various properties was (and is) licensing. Before the 1976 law, there was what was called a doctrine of indivisibility governing subsidiary rights. Only the copyright holder could authorize a licensing effort; an author could not authorize a publisher to act on his or her behalf with regard to it. If the publisher wanted to exploit the subsidiary rights, it simply wasn’t tenable without copyright ownership.
Marvel wasn’t unethical in owning the copyrights. What was unethical was not giving Kirby a reasonable degree of control over his material, including licensing efforts, and, of course, royalties. Marvel needed to treat Kirby the way United Features ultimately treated Charles Schulz (although Schulz did have to go to the mat to get that treatment). Schulz didn’t feel he needed to own the copyright as long as he controlled the property.
It should be noted that Kirby was paid fairly well up front. According to a 1971 article in the New York Times, when he left Marvel in 1970, they were paying him $35,000 a year. That’s approximately $207,000 in today’s dollars. Extrapolating from various sources, he was paid the equivalent of about $185,000 in today’s dollars back in 1963, when the Marvel superhero line really got going. He worked very hard to get that income, but it’s pretty enviable nonetheless. One could reasonably view that as compensation for no back-end or editorial control. It’s not unusual in media for there to be that kind of trade-off, although I know Kirby didn’t have much choice in the matter.
For my part, though, I think Kirby and his estate are morally entitled to royalties from the material as long as the copyright is active. But I don’t think the situation is as black-and-white as some people believe.
If people are curious about income for other creators, Marvel appears to have paid Steve Ditko the equivalent of about $152,000 a year back in 1963. DC paid Siegel & Shuster the equivalent of over a million dollars a year in 1940.
The Moore situation is different from that of Kirby, Ditko, and Siegel & Shuster. The evidence in that instance suggests that DC acquired the copyright under false pretenses, and their conduct until Before Watchmen indicates that they regarded their ownership of the copyright as strictly technical. Before the current DC regime, Moore and Dave Gibbons’ moral rights as authors were respected. It’s outrageous the two are not being treated that way now.
I think our copyright regime has been messed up for a long time. I can agree, though, that individual practices may vary in evilness. The decision to go ahead with Before Watchmen despite the contractual shenanigans and Moore’s vocal horror at the idea is a particular low point.
I’m with you on that. The companies have certainly trampled the creators’ moral rights as authors.
Don’t you find the Avengers’ marketing combined with the treatment of Kirby and the Kirby estate to be fairly vile as well, though?
I think the Kirby estate should get some kind of royalty. So should Don Heck’s estate, and so should Jim Starlin and any other comics creator whose work appears in the film. I haven’t seen the movie, so I can’t say who else I think should be getting some compensation from it.
I don’t want to sound vile here…but back in the ’60s, Joe Simon sued to get back his share of Captain America, and Kirby deposed against him for Marvel. There was a settlement.
There are aspects of copyright law in France that could profitably be incorporated into American law.
First, copyright can’t be transferred, although the artist may grant an exclusive license for as long as both parties agree.
In fact, back in the states, Steve gerber, in his lawsuit against Marvel for the ownership of Howard the Duck, averred that he had not ceded Howard to Marvel, but accorded them a license, which he was at liberty to revoke, and which only covered print comics.
Impossible to know if this argument would’ve won in court: Marvel and Gerber settled — which indicates to me that both sides were very, very nervous about the possible verdict.
But to get back both to Moore and to Kirby: in both cases the legal arguments are irrelevant. What counts are ethics and simple human decency.
Marvel/Disney could peel off a couple of million from its projected billion-plus profit from Avengers, and do the right thing by the Kirby family. Back in the ’70s, Warner/DC was shamed into giving pensions to Superman creators Siegel and Shuster, despite strong legal argument on their side.
And yeah, those artists — who I am sure will do a wonderful job on Before Watchmen — are scabs.
My great-grandparents were coal miners in the north of France. We don’t tolerate scabbing in our family.
So, DC guys, I’m sitting this one out.
Or, maybe not– I should still have some of my adolescent skills as a shoplifter…wait a bit while I rationalise this larceny to myself…
Jim Shooter’s recollections of Gerber’s Howard the Duck suit are here. Shooter’s memory occasionally isn’t the best, but what he says here makes sense. He doesn’t think Gerber had any chance of winning. Gerber obviously didn’t get much out of the settlement. Basically, all he got was Marvel’s character-creation incentive plan retroactively applied to Howard.
Settlements don’t mean that either side is nervous about a trial outcome. A settlement means that the two sides think it is more worthwhile to make some concessions to each other than deal with the costs of continuing the fight. If Marvel felt it was more worthwhile to give Gerber the same deal they gave Frank Miller with Elektra or John Byrne with Alpha Flight than to spend tens of thousands of dollars in legal fees on a trial, that’s certainly understandable.
I sincerely doubt Gerber had any formal licensing agreement with Marvel with regard to the character. Howard wasn’t Conan the Barbarian or Star Wars; he was originally an incidental character that Gerber stuck in a Man-Thing story.
I don’t think DC/Warner was “shamed” into giving Siegel & Shuster pensions. They decided it was more worthwhile to do that than to have negative publicity from the situation potentially impacting the box office take of the Christopher Reeve movies, which were in production at that point. It was a business decision.
Personally, I’m not of the opinion that DC treated Siegel & Shuster all that badly in the first place. At TCJ, Michael Dean estimated their total compensation from DC in the ’30s and ’40s to be in excess of $400,000, which is the equivalent today of at least $5 million. As Michael wrote, “one of the still unsolved mysteries of the Siegel and Shuster story is how the two managed to go from such relative wealth to dissolute poverty in such a short time.” I don’t know the circumstances, either, but a lot of people who win multimillion-dollar lottery jackpots also end up in bankruptcy court later on.
I agree with most of this, too. Yeah, those guys are scabs.
One unfortunate aspect of American copyright law, as I understand it, is that “fair use” is subordinate to parody. That is, for one party’s use of another party’s intellectual property to be okay, it has to fit into the general, court-defined outline of parody, which is of course protected speech.
In my view “fair use” should be based on the paradigm of transformation. The concept of transformation is, as it happens, part of American copyright law (in the analysis of determining whether use is fair) — my argument is that it should be primary.
I don’t know if this would solve your Carpenters issue — it seems to me that a general rule that you can use music in the production of a play that you put on for a profit is a bridge too far (if they play is non-commercial, as I understand it, there wouldn’t be an issue.)
But it would allow your “remixes” while forbidding outright theft, and it would do so without taking the bass-ackward view that a remix has to somehow entail a criticism or mockery of the original to not be theft.
The link to Jim Shooter’s post about the Howard the Duck case has been restored. Sorry about that; I don’t know what happened there.
Nice piece, Noah, both this one and the old TCJ one. Tell me something, if you will–is there any hope of restoring a saner copyright system? It doesn’t seem very likely at this point–I’m looking into my crystal ball and seeing an army of zombie IPs monopolistically marching forever into the future.
Yeah…I don’t know. I think that the hope is that companies that have an interest in looser copyright, like Google or Facebook, eventually overtake companies that have an interest in stronger copyright, like Disney. So basically we have to hope that eventually the corrupt nature of our political system works in our favor. We’ll see.