The Power of No

 

            My comic book lawyer colleague Gamal Hennessy has been writing about leverage on his blog recently. He is using Dave Chappelle’s recent pressuring of Netflix to remove old Chappelle’s Show episodes from its service as an example of how to acquire and exert leverage. His series of posts are worthwhile reading. Leverage is an important concept, and I’d like to expand on Gamal’s thoughts a bit.

            When writing my Comics Startup 101book and blog posts, I briefly discussed leverage. In short, leverage is who holds the most power in a negotiation. If one party has more leverage in a negotiation, then they are more likely to obtain the contractual and financial terms they desire.

            Who holds the most leverage in comic book publishing? Most people will default to saying the publisher holds the most leverage. To some extent, they are correct. A publisher decides what books they will publish, and most comic book creators aspire to have their books printed and distributed by a publisher. Comic book publishing contracts heavily favor the publisher and not the creator. Even so, a creator, even an inexperienced creator, does have one piece of leverage they can always exercise—saying no.

            Creators need to carefully evaluate any deal a publisher offers. By doing so, you might find the publisher’s leverage to be flimsy. Is the publisher paying you an advance? If they are, then that works to the publisher’s advantage. If they are not, then you need to analyze how the deal benefits you. Most comic book publishing deals, particularly from smaller publishers, require the creator to front the costs of creating the book by paying for the art, lettering, coloring, etc. The publisher pays to print and distribute the book, recoups those costs, and then splits the remaining profits with the creators (often 50/50). Other questions to consider: How big is the publisher? Do they have the ability to promote and distribute your book in relevant quantities? Does working with them further your agenda or career? What other rights are you giving up? Creators should evaluate all of these points and decide if the deal makes sense for them.

            In most cases, when presented with a publishing contract, or contract of any kind, the comic book creator’s only leverage is to say no. Most creators are afraid to do so. There is always the fear that another deal might not come along or that this is your only shot. Saying no and losing a deal might seem like a bad idea, but protecting yourself from bad deals or exploitative contracts is important as well. It is challenging to balance these conflicting scenarios.

It’s scary to say no, but it can also be empowering. By saying no to a bad deal, you are valuing yourself and your work. Instead of giving up profits and control over your work, you are keeping it for yourself. More creators should be willing to do so.

Why is saying no important? Publishers need your works. They need new content to stay relevant. If publishers do not continue to print new, interesting works, then it is hard to remain profitable and grow. It is not a secret that far too many publishers offer poor contract terms. Some will negotiate. Some won’t. Most rely on a creator’s fear of not being published to get leverage and tilt the balance of negotiating power to their side. But, if their deal terms are bad, and you and others are willing to reject them, then it is a small step toward obtaining better deals for everyone.

In today’s age of self-publishing and Kickstarter, creators should seriously consider whether agreeing to a contract with a publisher is in their best financial interest. In addition to the above, when you factor in that most publishers want 50% of any media deals you might receive, and will not pay you any additional compensation for these rights, then the deal is even less favorable to you. Saying no is powerful.

Do Dr. Seuss and Fair Use (Comic)Mix? - Part 3

 

            The Ninth Circuit Court of Appeals recently issued a decision in the Dr. Seuss Enterprises, L.P. v. ComicMix LLC case I’ve been following for a while. (You can find my post initial post on the case here, and the post on the district court decision.) After Seuss lost at the district court on its trademark and copyright infringement claims, it appealed. The Ninth Circuit’s ruling overturned the lower court’s decision favoring ComicMix’s fair use defense and upholding the dismissal of Seuss’ trademark claims.

            To summarize the background, ComicMix decided to publish a book titled Oh, the Places You’ll Boldly Go! that was a mash up of Star Trek and Dr. Seuss. It raised almost $30,000 on Kickstarter, and ComicMix was having discussions with retailers and publishers about further distributing the book. However, ComicMix did not obtain a license from either Seuss or CBS/Viacom (the owners of Star Trek). Seuss sent cease-and-desist letters to ComicMix, but ComicMix believed its book to be protected by fair use. Seuss filed a lawsuit alleging copyright infringement, trademark infringement, and unfair competition in 2016.  In a summary judgment action, the district court ruled in favor of ComicMix by finding that it was a fair use and there was no trademark infringement. Seuss appealed.

            The Ninth Circuit reviewed the district court’s analysis of ComicMix’s fair use defense and found the court improperly evaluated and weighed the fair use factors. I’ve discussed fair use before, but as a reminder, the factors are:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

In evaluating the above factors, the Ninth Circuit disagreed with the district court’s conclusion, particularly in relation to factors one and four.

In analyzing the first fair use factor, whereas the district court found the work to be transformative, the Ninth Circuit did not. The Ninth Circuit determined the book was not a parody as it did not comment upon Dr. Seuss’ works, was not transformative, and primarily used Dr. Seuss’ work as a means to better commercialize its own work. The court placed considerable emphasis on the fact that ComicMix slavishly recreated scenes from Oh, the Places You’ll Go! and other Seuss works in its book.  The copying and recreation of the works was also determinative in finding against ComicMix on factor three.

Finally, the Ninth Circuit disagreed with the district court’s analysis of factor four. The district court acknowledged that there might be market harm to Seuss by allowing the publication of ComicMix’s book, but it found that Seuss failed to submit sufficient evidence to show harm. However, the Ninth Circuit emphasized that fair use is an affirmative defense to copyright infringement, and the defendant carries the burden of proving fair use. The burden was on ComicMix to show that there would not be market harm. ComicMix failed to do so, and the Ninth Circuit found it likely Seuss would be harmed, particularly in its ability to continue authorizing derivative works. In concluding its analysis of the fourth factor, the court said, “The bottom line is that ComicMix created, without seeking permission or a license, a non-transformative commercial work that targets and usurps Go!’s potential market.” (slip opinion at page 30).

I found interesting the court’s emphasis on ComicMix’s dedicated copying of Seuss works, its disregard for seeking a license, or opinion of counsel. Particular quotes that jumped out to me were: “The creators thought their Star Trek primer would be ‘pretty well protected by parody,’ but acknowledged that ‘people in black robes’ may disagree. Indeed, we do.” (slip opinion at page 5) and “Despite being ‘slightly concerned,’ ComicMix did not consult a lawyer or pursue the option of a license.” (slip opinion at page 9) Reading comments like this, you know the defendant is going to be in trouble. I also thought it interesting to note the court mentioned that ComicMix also did not seek a license from the owners of Star Trek. Overall, the opinion definitely took a hostile opinion to the activities of ComicMix.

As a creator, it is important to remember that fair use is a defense. I’ve stated it many times, but claiming your work is fair use will not protect you from a lawsuit. Fair use is evaluated on a case-by-case basis, and educated opinions can vary. For instance, while I would not have advised ComicMix to proceed with their book relying on a fair use defense, as I’ve always thought it a long shot, I also thought the district court’s decision was sound. Apparently I was wrong.

When you use someone’s copyrighted work in your own, you are inviting trouble. If you do so, you should proceed cautiously and carefully and take efforts to make it a fair use.

You can find the court’s opinion here.

Comic Book Recommendations - 2020

 

           I’m often asked for comic book recommendations, but I’ve always found it tricky to provide them. First, I am usually woefully behind on comics. There will be the occasional series I might be temporarily caught up on, but I’m usually months behind. Second, tastes differ. My preferences might not match up with the person I’m recommending a book to. Finally, breadth of choices. There are so many good books out there right now that it’s difficult to narrow it down.

            Nevertheless, with all of the foregoing caveats out there, I’m going to post some of the books I enjoyed this year. Additional caveats, just because I read them this year does not mean they were necessarily released this year. Also, this year has been long—really long—and I am having a really hard time remembering what I read pre-pandemic. Finally, I’m primarily going to focus on trades/graphic novels that are creator-owned.

            (Links to Amazon are affiliate links. Even so, if you’re intrigued by these books, try to buy them from your local comic shop or book store.)

Come Home, Indio

Jim Terry’s autobiographical comic about growing up and dealing with addiction is raw, difficult to read, and wonderfully executed.

 

The Plot vol. 1

An intriguing start to a story that reminds of a hybrid between Swamp Thing and The Haunting of Hill House.

 

Something is Killing the Children, vols. 1 & 2

Creepy, briskly-paced. The story follows Erica Slaughter as she tries to stop monsters in a small Wisconsin town. It feels like Tynion and Dell’Edera are making something special.

 

Grumble, vols. 1 & 2

Quirky and enjoyable story about a petty crook turned into a pug.

 

Outpost Zero, vols. 1-3

This series has already been cancelled, but it shouldn’t stop you from checking it out. Interesting premise that builds slowly. Story focuses on descendants of humans who fled Earth and are tryig to survive on a remote planet. Reminds me of the TV show Ascension.

 

My Heroes Have Always Been Junkies

A stand alone entry in the Criminal world that is an engrossing read. If you’re a fan of noir, definitely worth reading.

 

Clean Room, vols. 1-3.

A little sci-fi, a little horror. Clean Room focuses on a woman investigating her fiance’s suicide and the cult that may have something to do with it.

These Savage Shores

An English vampire travels to India and encounters something deadlier than himself.

 

On Forming a Comic Book Union - Part III

 

Editor’s Note: To conclude my series of posts on the challenges of forming a comic book creator’s union, I have a few final thoughts. The other posts can be found here and here.

 

Fascinatingly to me, even though I understand work-made-for-hire law, the interplay between copyright ownership and employment status had not really occurred to me as it pertains to labor law until researching this article.

Under current copyright law, a publisher can only own a work if it is created by an employee or made pursuant to a work-made-for-hire agreement (see this post for a more detailed discussion of work-made-for-hire). If the creator was not an employee and if there was no contract, then the creator retains ownership. If there is a contract but the work does not fall into one of the enumerated work-made-for-hire categories (see here), then the creator retains the rights. The creator can assign ownership to the publisher, but the original creator would retain the right to terminate the transfer later—a proposition most publisher’s would like to avoid (see my posts on the rights to Superman, Captain America, etc.).

The above seems straightforward, but it can get complicated. For instance, the analysis becomes murkier when applied to independent contractors. Even though they may be classified as an independent contractor, if the relationship with the employer meets the criteria for a common law agency relationship as set forth in Community for Creative Non-Violence v. Reid (see my first post on forming a comic book union), then it is possible for the created work to be deemed a work-made-for-hire.

For instance, one of the reasons the Kirby estate’s challenge to reclaim ownership over the Marvel characters he created failed was because the appellate court, in applying an older test to determine work-made-for-hire, ruled him to be an employee for purposes of copyright ownership. Granted, that was applying an older copyright law, but it makes for a fascinating “What if” scenario today. If the case hadn’t settled before it reached the Supreme Court, the outcome may have been very different.

Finally, this split in wanting to own the intellectual property outright versus the desire to classify workers as independent contractors played a key role in the formation of the Writers Guild in the 1930s and 1940s.[1] The studios were arguing on one hand that the writers were employees within the meaning of the 1909 Copyright Act so that the studios would own the copyrighted instead of the writers, and on the other hand, the studios were also arguing the writers couldn’t unionize because they were independent contractors.[2]

Even though copyright law and employment law are two very distinct practice areas, they do overlap when it comes to work-made-for-hire. Generally speaking, just because someone is deemed an employee for copyright purposes does not mean they are an employee for labor law purposes. However, California takes the view that an employer cannot benefit from a contractual work-made-for-hire provision without also being considered the employer. Knowing your employment status, and what your agreements say, is very important.

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[1] See Fisk, Catherine,  (2018) “Hollywood Writers and the Gig Economy,” University of Chicago Legal Forum: Vol. 2017, Article 9. Available at: https://chicagounbound.uchicago.edu/uclf/vol2017/iss1/8

[2] Id., at 184-185.                                                                                                                                                                                                                                                                                                                                                                  

Halloween Costumes & Knockoffs - Part IV

     It's my favorite time of year again. As I've done the past few years, I'm going to point out some of my favorite superhero knock-off costumes on Amazon. You can find years two and three at the links. If you want to re-read my first post that includes the legal whys behind knockoff costumes, you can find it here. Otherwise, on to the costumes! (Note: all links affiliate links)

This isn't as blatant as some, but it's still Elektra-fying.

This is Marvel-ously close to a certain Captain's design.

This costume is just Wonderful.

This costume has Miles to go before I believe it's officially licensed.

This photo looks so bad, I don't think I can make fun of it. Wait, I have something: "Ooh, somebody stop me!"

I realize if you're dressing up as "Fat Thor," you're probably lazy. But, buying a knock-off "Fat Thor" costume is just too much.

Enola Holmes and the Public Domain

            I recently watched the new film Enola Holmes on Netflix. The film stars Millie Bobby Brown as Enola, the younger sister of Sherlock Holmes, and it is based on a series of books written by Nancy Springer. It was an entertaining film, but, while I was watching it, I couldn’t help thinking about copyright law and the public domain.

            A few years ago, the editor of an anthology featuring newly written Sherlock Holmes stories sued the Doyle Estate after it demanded licensing fees. I covered this lawsuit, Klinger v. Doyle Estate, Ltd., in a previous blog post on the interplay of public domain law and trademark law. After watching Enola Holmes, I wondered if it faced similar issues.

The Doyle estate filed a lawsuit against Netflix, Nancy Springer, and the book publisher for copyright infringement.[1] The estate claims the novels and movie infringe upon the last 10 remaining Sherlock Holmes stories still protected by copyright. Specifically, the Estate argues the Enola Holmes stories infringe Sherlock Holmes character traits introduced in the last 10 stories. The case is still pending.

While I won’t discuss the pending case in depth, I do want to briefly discuss the public domain. Generally speaking, any creative work that is no longer subject to copyright protection is in the public domain. Once in the public domain, others are free to use the work as they see fit. Works entering the public domain after the term of copyright protection has expired is the bargain granted for the exclusive rights granted to the author during the term of protection.

Enola Holmes is a great example of how this bargain should work. Arthur Conan Doyle created Sherlock Holmes, a character beloved by many for over a century. Most of the Sherlock Holmes stories are in the public domain, and all will be in the public domain on January 1, 2023. Doyle and his estate have had decades to benefit from the publication and licensing of his stories. Springer created a new character set in Sherlock Holmes’ world and new tales drawing on the Holmes legacy. Had she done so while all of the Sherlock Holmes stories were still protected by copyright, it would likely have been an infringement of Doyle’s copyright rights. However, if the stories Springer created drew from public domain stories, then it is perfectly legal.

The creation of new and unique creative works that take from and build upon works that are in the public domain are at the heart of copyright law and “promote the progress of … useful arts.”[2] Enola Holmes embodies this goal.      

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[1] https://www.hollywoodreporter.com/thr-esq/conan-doyle-estate-sues-netflix-coming-movie-sherlock-holmes-sister-1300108

[2] U.S. Constitution, Art. 1, Sec. 1, Cl. 8.

Book Review - Empire of Monsters

Before picking up Empire of Monsters (affiliate link), I was aware of Warren Publishing, and I had heard of Vampirella, Creepy, and Famous Monsters of Filmland, but I knew nothing about James Warren, the man behind the magazines. Bill Schelly’s book was an interesting and informative biography that appealed to me in ways I wasn’t expecting. 

            Prior to starting my legal career, I had a brief career in journalism. Warren’s experiences as a New York-based magazine publisher in the '50s and '60s really appealed to my interests in the history of journalism and media. As Warren was building his business, his path crossed many well-known media personalities in New York, including photographer Diane Arbus, whose photo he published, famed crime scene photographer Weegee, and Gloria Steinem, whose career in publishing started at Warren Publishing. Terry Gilliam, of Monty Python fame, was an assistant on Harvey Kurtzman’s Help!, a magazine that Warren published.

Warren was also inspired by Hugh Hefner, early in his career. In fact, an obscenity charge was filed against him for publishing a less risqué Playboy knockoff.

            Schelly does an excellent job describing Warren’s rise, fall, rise, and fall over the decades. He tells the fascinating story of a man who was driven to succeed in publishing, constantly looking for the next big thing, and desirous of, and a bit indulgent in, success. The portrait Schelly paints of Warren shows him to be a complex and conflicting character. He could be both friendly and gregarious and also secretive and combative. Schelly’s excerpt of Warren’s speech at the New York Comic Art Convention in 1971 is both hilarious and depressing in its skewering of the industry and fans and in its relevance today.

            Warren’s magazines hosted a who’s-who of comic creators over the years—sometimes launching them, and sometimes harboring them from industry burnout. Over the years, names such as Frank Frazetta, Bernie Wrightson, Neal Adams, Archie Goodwin, Alex Toth, Wallace Wood, Louise Simonson (Jones), and many others worked for Warren.

            I particularly enjoyed the behind the business aspects of this book. Reading about how Warren built his publishing business, how he had to juggle finances to get his magazines started, and during lean years keep them afloat, was fascinating. It was also interesting to read about the variety of deals Warren would make with his writers and artists regarding pay and returning original artwork. I found a particular passage illuminating. During an interview later in life, Warren describes creative people as childlike and lacking in business sense. While on its face, the comment might seem mean spirited, he was merely acknowledging that creative people have a different mindset than business people, and the two may clash because of it. He also recognized his role in the business as someone who creates work for creatives.

            The book recounted many of Warren’s legal issues, including how Warren tried to protect the title Eerie before another publisher could use it. (It recounted this as a copyright problem, but it really should have been a trademark issue.) It was also revealed that Warren did not have his writers and artists cash checks with a “work-made-for-hire” notice on the back, as was common at DC and Marvel. Instead, he just acted like he owned the works and would republish at will. There were also interesting tales involving a copyright lawsuit filed against Warren Publishing by Harlan Ellison, and, after Warren Publishing collapsed, a chapter on Warren’s lawsuit against Harris Publishing over the rights to Vampirella and other intellectual property assets.

            Empire of Monsters is a well-researched and well-written account of an interesting figure in comic book and magazine publishing. It is a worthwhile read for anyone seeking to learn more about these industries and this era of publishing.