Creator Rights: Ethics vs. Obligation

Recently in the world of comic books there has been something of a controversy surrounding the issue of creator rights. Whether it’s the way that Jack Kirby’s family is being treated in respect to the use of characters he helped create that are now in movies and merchandise, or if it’s the Jerry Siegel and Joe Shuster estates in respect to the properties of Superman and Superboy, or, most loudly, the case of Alan Moore and Dave Gibbons in respect to Watchmen: the debate rages on. What are creator rights to the continued usage of characters and the rights of their heirs to royalties? It’s something of a hot button issue as its leading to a number of people to call for boycotts of, specifically, the forthcoming Avengers movie and Before Watchmen comics events.

Before I weigh in on my thoughts personally, I’d like to outline something very clear about the stance of creator rights with Eat Your Serial, Inc. Eat Your Serial is a creator focused publishing house. Back in 2009 when I first became involved in the discussions leading up to what eventually flourished into Eat Your Serial, the main idea driving the creation of the company was to create an artist-friendly platform upon which new voices could stand in a mutually beneficially arrangement. Every book that has been published by Eat Your Serial is owned by the author. Eat Your Serial has the rights to publish, advertise, and sell the book. Every so often, the publishing rights contractually come up for renegotiation. That’s how we roll (at least that’s the simple version of how we roll).

Additionally, I’d like to add for those of you that don’t know: I have a novel published with the company. It’s no secret. I self-promote quite often. In fact, after you read this blog entry, go buy my book. Read it. Give it to everyone you meet for their birthday and Christmas. I was a novelist signed to the company before any other level of involvement here, and that creator owned mission is what drew me here in the first place. And I, too, own my book.

On the other hand, I’ve created a number of materials for the company in my executive role that I do not own. I do not own Eat Your Serial: Presents—I am the creator of it. I do not own the advertisements, videos, and flyers I’ve created. I’ll even go so far as to say I don’t own the blog entries I make here. It’s work-for-hire. My function is to create media for the company. The key word is “for” and not “create”. Certainly I expect something for my creations, but ownership? Creative control? Not in the aspects of what I’ve created in a “work-for-hire” context. The point may be muted, or even moot, as I am a highfalutin co-owner of the company, so in a roundabout way I own it anyway, but I like to compartmentalize my “executive self” from my “creator self”. It’s the only fair way to work in this context for, essentially, myself.

I’ll be clear in stating that the following opinion comes from my “creator self”, the person that writes and edits videos, and plays guitar, and doodles in a sketchbook, and all those other things I do because I enjoy them. It is not from a co-owner of a company. This is not a statement from the company—it’s my personal opinion being expressed on a creator friendly platform.

With all that said, many creators and fans are getting very worked up over royalties and rights for a number of works that were either created as “work-for-hire” or were purchased outright from the owners. Chris Roberson recently spoke out against what he said were DC’s ethics in dealing with creator rights. He stated that he will seek no additional work from the company. He has been fired from the works he was already on. For me, his choice of words—ethics—is where the argument hangs. What is ethical versus what is obligatory?

With great concern, I have followed the Siegel & Shuster estates legal battles over the Superman and Superboy properties. Superman is, in my opinion, the apex of comic book heroism. The “form” from which all other super-heroes are “shadows” derive (in the sense of Allegory of the Cave). My understanding has always been that Siegel & Shuster sold this property to National Comics (later DC Comics). There appears to be some debate as to the legality of that agreement. I’ve heard that the estates concerned feel their fathers were robbed or swindled, cut out of deals, or otherwise mishandled by the company to steal the rights of Superman away. It has been reported that the creators of Superman, in any event, sold the rights to the character the publisher for $130 and a contract to create new material. I must add that the purchasing of the rights to Superman for $130 is up there with the purchases of Manhattan and Louisiana and the exchange of a rib for a woman as one of the best deals of all time.

In the years that have followed, there have been numerous legal battles over the property and its derivative, Superboy. Superboy is also a creation of Siegel and Shuster who pitched the idea twice to DC before they eventually ran it with art from Shuster but no consent from Siegel who was still overseas. While there have been disputes over the copyright, and even a few years suspension of the use of the character, the legality of Superman is the heart of the issue. This battle actually goes way back to 1947 and is too long to outline here. The gist of it is simple: they sold their rights away in return for “work-for-hire” employment. The battle was over when Nation paid the pair $94,000 for ownership of Superboy…but it got hairy after copyright laws and renewals started coming due. So the battle rages on in technicality.

The story is not dissimilar for the estate of Jack Kirby and Marvel Comics. Kirby’s personal issues were derived from creative control and credit, not money, but his estate’s claims are for residual monies and royalties.

What is markedly different, for a variety of reasons, is the dispute between Alan Moore and DC (Dave Gibbons has since reconciled at least somewhat and is not, for his part, nearly as vocal as Alan Moore is) over Watchmen. Recently, following the escalation of Watchmen from a cult phenomenon to an outright cash cow, DC announced that it will be releasing a score of prequels to the original Watchmen limited series. Besides being essentially worthless to do so as the major events leading to the story of Watchmen are all covered in-story, Moore asserts that the company has no right to do so without his express consent and contends that he is supposed to own the property. It was his understanding that after a brief period of time after publication,  and after the trade went out of print, the rights to the story (whose characters are heavily based on the Charlton Comics characters acquired by DC in the 1980s) would return to them. DC never, it seems, intended for that to happen and never allowed the trade to go out of print and have baited the two to do follow up stories that violate their beliefs about the completeness of the work. They got screwed on a technicality, and placed too much trust in a vaguely worded agreement.

What makes this situation vastly different is that it happened far more recently than the Siegel & Shuster or Kirby affair, but also, more importantly, that the creators are still alive. Though Moore looks frightful, he is very much alive and has the full range of cognitive capacities about him. This makes for a much more potent argument because the legal battle, disagreement, or wrong-doing is based on first-hand accounts over properties actually created by the person making the claim. To me, this makes all the difference in the world. Moore and Gibbons approached DC with a story that held characters that were derivative, yes, but their own, in a story that was original. They were under the impression that they would retain the rights. It did not occur, and they feel wronged personally over a work they created.

There are rulings, specifically with Siegel & Shuster, that are accompanied with settlements paid to the original persons. All people involved on both ends of that deal are dead. I’ve no doubt that the estates are acting under the advice of very good counsel, but it seems to me like they are stirring the pot for a big payoff, for something they didn’t make, that has been paid for more than once. That’s just my gut instinct. Perhaps there is legal cause for them to feel there are royalty rights owed to them through inheritance legally. My personal feeling is that it would be just and ethical for Warner Brothers and DC to offer a stake in the profits, but probably not required by the strictest letter of their contracts. To pay respects and honor to the creators by endowing a benefit to their heirs would be a qualitative statement of recognition to the creators for providing the meat and potatoes of their operation. It would be very dignified of them—it would be nice. From what I understand of the situation, it isn’t required.

In the Kirby Estate case, unless there are clear documents that negate The King’s work-for-hire arrangement in the publishing of certain characters, he should get whatever rights of credit are due by fact and whatever royalties are expressed in contract. I don’t know what possible grounds might exist otherwise to renegotiate contracts signed for services rendered by dead men. Then again, I’m no lawyer, I don’t have the evidence in front of me, and I’m talking contractual obligation, not just and dignified recognition.

Moore and Gibbons (mostly Moore) are screaming rightfully over their own work, not over something someone else did. I can’t help but feel like Dagny Taggert getting irked at people asking “Who is John Galt?” but that’s my gut reaction—because of the way the histories and contracts are written. Unfortunately, not all companies are as interested in retaining creator rights as we are here at Eat Your Serial. Also, in an historical context, who could have known a property such as Superman would be as successful as it is today? There are those arguing that the earlier creators got screwed—Moore and Gibbons got screwed—but the early creators operated in different rules. The industry wasn’t as successful or lucrative as it now is—ironically it is so because of the creative works of Siegel & Shuster and Kirby.

I feel like creators today have more savvy about them, and there are creator owned operations where they can take their properties and have a platform for them and retain their rights—platforms like ours where this is a core belief, and a piece of our morality, and the ethical compass of our bottom-line. Working for a powerhouse like Marvel or DC comes with great benefits, but it also comes with the knowledge that they own the bulk of your work. That’s the culture of it unless otherwise specified.

In the end it comes down to a few simple questions:

Do I think the creators are owed royalties and rights for their creations?

It depends on what the contract says. Siegel & Shuster and Kirby? Probably not, or at least not according to the coverage that I’ve read. Moore and Gibbons, probably so, they paint a picture of being hoodwinked—told something verbally and signing a contract with trick language. That’s a true screw job.

Do I think the companies should give the royalties to the estates of the creators?

Yes, I do. I think it would be the proper way to respect the creators who provided for their current success. Ethically, it would retcon the deal they should have gotten. It is the decent thing to do, though probably not the contractually or legally obliged thing to do.

How would I feel if it were me?

I’d take those bums to court and appeal every ruling against me (or my heirs) until I reached The Living Tribunal or the floating heads from Superman: The Movie.


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