Why Creators Don't Want to Hear Your Idea

            In the wake of San Diego Comic-Con, I’ve been seeing creators on social media reminding their fans to not pitch them their ideas for stories. Why is this? Because they, and their employers, don’t want to be sued.

            While copyright infringement is probably the first thing you’d think of, those types of lawsuits have proven difficult for plaintiffs to win. In order to win a copyright infringement lawsuit, you must have a valid copyright in a work fixed in a tangible medium, and the complained-of work must be substantially similar to the plaintiff's. Those two elements usually trip up a would-be copyright lawsuit, particularly because the plaintiff’s “work” is not eligible for copyright protection because it’s merely an idea.

            Since copyright infringement is hard to win, plaintiffs have turned to suing under an implied-in-fact contract, or more generally, an idea theft lawsuit. Basically, the plaintiff claims they described and/or showed their work to the defendant with the expectation that if the work was used, they’d be compensated for it. Instead of basing the claim in copyright law, it is now based in contract law, and by using the plaintiff’s idea without compensation, the defendant breached the implied contract. These lawsuits have been easier for plaintiffs to get deeper into court proceedings than copyright infringement lawsuits, but they have not met with great success. More often than not, especially in Hollywood ones, the plaintiff eventually loses.

            Even so, studios and companies would prefer to not fight these lawsuits, and it’s just easiest to not accept unsolicited pitches. It’s the main reason most comic book publishers with established properties do not hear unsolicited pitches for their comics, and it’s a policy they encourage their creators to follow as well.

            While your story idea might be a good, or even a great one, the risk for a creator is too high for them to hear it.

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

            I’ve been following the Dr. Seuss versus Comic Mix case for a while. While the case is still ongoing, the Comic Mix website recently posted a plea for help. Comic Mix is starting to run out of money, and they are now seeking donations to continue defending the lawsuit.

           Comic Mix chose to publish a mash-up book using intellectual property it does not own, and involving an area of copyright and trademark law that is still not well-defined, and it now finds itself involved in a lawsuit that could help define the legal boundaries of fair use, mash-ups, and even fan art, for everyone else.

            Comic Mix’s plight is not atypical and brings up two points I’d like to discuss. First, fair use is a defense against copyright infringement claims. Second, defending your rights in the American legal system can be expensive and when you’re litigating a dispute in an area of law that is still being developed, your chances of winning are uncertain.

            As I’ve mentioned before, fair use is a strong defense to a copyright infringement claim. However, in order to avail oneself of it, you are probably going to be sued. Even though some courts have found the copyright statute to require copyright owners to consider whether fair use applies before filing an infringement lawsuit (see for example Lenz v. Universal Music Corp., 801 F.3d1126 (9th Cir. 2015), there have not been any cases, of which I’m aware, where the copyright owner has faced any adverse consequences for initiating a lawsuit.

            Even in the Lenz case, the court gives copyright owners leeway by stating they must have a “subjective good faith belief that the use was not authorized by law[,]” i.e., fair use. Basically, in my opinion, if an intellectual property owner believes you are infringing on their work, you are probably going to get sued if you don’t capitulate to their requests.

            No matter how great you think the chances are you will win your case, litigation is time-consuming and attorney’s fees can add up quickly. For the most part in the American legal system, each party pays their own fees. While there are some statutes that allow for a winning party to recover their attorney’s fees from the other party, it is not very common.

            One of the unfortunate side effects of the system is that it is safer and cheaper to not fight than to litigate a dispute, even if you believe you are in the right. I do applaud those people and companies that choose to fight. Without people willing to litigate cases, the boundaries of the law would not be explored and defined. Even when someone fights and loses, often society gains because the judicial decisions help shape and guide the decisions of others facing similar dilemmas.

            If you are interested in donating to assist Comic Mix, the link is here.    

           

Tarzan, John Carter, Trademarks, and the Public Domain

            A while ago, I posted an article I wrote about ways content owners might be able to protect public domain works. One of the scenarios I mentioned in my article, using trademark rights as a way to protect the work, was actually used against a comic book publisher a few years ago.

            In 2010, Dynamite Entertainment launched a few new comic books adapting Edgar Rice Burroughs stories that had passed into the public domain in the United States. The titles of the comics were Lord of the Jungle, featuring Tarzan stories, and Warlord of Mars, featuring John Carter stories.

            The Edgar Rice Burroughs estate, ERB, Inc., filed a lawsuit in 2012. One of the issues ERB asserted was that Dynamite’s titles for the new comics violated ERB’s trademark rights by selling comics bearing titles confusingly similar to those used by ERB. Even though the Dynamite comics did not mention the main characters’ names in the title, the titles Dynamite chose had been used as subtitles in the past. ERB also claimed Dynamite’s publication of the books diluted or damaged its brands, partially due to some risqué covers associated with the books, and Dynamite’s publication of the books would harm the comic book licensing deals it currently had in place with another publisher.

            Unfortunately, from a legal observer perspective, the case did not get very far. After a few initial filings, the parties settled the case. Interestingly, as part of the settlement, Dynamite ended up acquiring the license to publish Tarzan and John Carter comics that had previously been with another publisher.

            Even though we did not get a ruling that might have given us a better understanding of the interplay between public domain works and trademark law, I still find it an interesting case. It shows the importance of securing trademark rights to ongoing titles, and a possible way for content owners to retain some control over works that might fall into the public domain.

            Barring another extension of the copyright term, a number of early, high-profile comic books should fall into the public domain over the next 15-20 years, such as the first appearances of Superman, Batman, Captain Marvel/Shazam, and Captain America. As tempting as it might be to reprint or create derivative works based on these stories, anyone attempting to do so should consider if there any trademark risks in doing so. Particularly, if the character is still being published.    

Trademark FAQs

A while back I did a FAQ on many of the copyright questions I receive. It’s about time to do one on trademarks as well.

Note: This is not a complete list of everything you need to know about trademarks, but a few commonly asked questions I receive.

1) Do I need to register a trademark?

If you think the trademark is vital to your brand or organization, then registering it with the U.S. Patent and Trademark Office (USPTO) makes sense—this is known as a federal trademark. But, only do so if you are using it in interstate commerce and plan on continuously using it. Sales of product in interstate commerce and continued use are requirements to maintaining federal trademark protection. If you are using a trademark without registering it, you have what are known as common law rights, but it can be difficult to establish and protect those rights. Registration with the USPTO is the best way to prove and enforce your rights.

2) Can I register a comic book title as a trademark?

Yes, so long as you continue publishing the comic book as an ongoing series under the same title. Again, continued use is key to maintaining a trademark. Because of this requirement, titles of books or one-shots are not eligible for trademark protection.

3) How much does it cost to register a trademark?

It costs between $225-275 per class of goods/services to file a trademark registration. Depending on how it’s filed, the number of classes of goods/services selected, and if it encounters any issues during the registration process, the costs of registration could increase. If you’re using an attorney or a service to assist you in registering the trademark, those fees will be separate. Once registered, there are additional fees to maintain your trademark registration.

4) Are there other trademark registration options?

You can try and register your trademark in the state in which you reside. It will be cheaper, but only grants you trademark rights in that state.

5) Can’t I just put a ® next to my title?

No, the ® designation is reserved only for trademarks registered with the U.S. Patent and Trademark Office. Unregistered trademarks may be designated with a “TM,” but it does not grant you any special rights.

If you’d like to read more about trademarks, check out my previous post in my Comics Startup 101 series.

Why Reversion Rights Matter

            During the panel I hosted at C2E2 and another one I listened to, the concept of reversion came up multiple times. Since I believe reversion rights are an important concept for creators to understand and to ask for, I’ll talk a little more in-depth about it today.

            Reversion rights are when the rights you have granted to someone, e.g., the right to adapt your comic book into a film or TV show, automatically return to you. Typically, this occurs because of conditions set forth in your contract, such as a failure to raise enough capital within a set amount of time, failure to produce and distribute the movie/TV show within a set number of years, or it can even be a continuing progression of achievements that must be met in order for the other party to retain the rights to your work. If you do not have reversion rights, or termination rights, in your contract, you might not be able to reclaim the rights you have transferred.

            Reversion and termination are similar, but are structured differently. As I said before, reversion occurs if certain conditions aren’t met in the contract, and it’s typically supposed to occur without any action on your part. If the other party doesn’t meet the requirements, the rights come back to you on a certain date. It can also apply to all of the rights granted in the contract or only to some. Depending on the deal, a reversion could be the effective termination of the agreement, or the deal may continue with some of the rights returning. Termination provisions, while often dealing with similar subject matter, usually require an action on your part—a notification to terminate—in order for the contract to be terminated, and once a contract is terminated, the relationship is over.

            Reversion rights are important because it places an obligation on the party licensing the rights to your work to actually do something with those rights. Otherwise, they will lose the rights they’ve acquired. Reversion gives creators an easy way to regain unexploited or underutilized rights to your work and, hopefully, license them to someone else. You get more opportunities to see your work adapted into other media and more chances to make additional money.  

Wizard World Pitchfest

When the partnership was announced between Sony Pictures and Wizard World to hold pitch sessions at conventions, it was a little light on details. Now, we know how the two companies will handle the pitch sessions.

In advance of Wizard World Portland, Sony and Wizard World have revealed how to participate in their pitch process. Instead of pitching to Sony, the pitch process is with Columbia Pictures, a Sony subsidiary. To participate in the 2018 Portland Pitchfest, you must attend Wizard World Portland as an attendee, exhibitor, or artist, submit your idea for a movie through the online portal, and be selected to pitch your idea at the show. You also must agree to two privacy policies and a Submission/Pitch Release.

I skimmed over the Submission/Pitch Release, and there is a lot of the typical information you’d expect in it. Just because Columbia is hearing your pitch it isn’t obligated to buy your idea, compensate you for your idea if they don’t use it, or produce your pitch. If they like your pitch, you agree to negotiate with them. Also, I didn’t see anything obligating you to pay Wizard World. So, any money Wizard World receives should be coming directly from Columbia.

Columbia also lists a number of ways they won’t compensate you if it ends producing something similar to your idea. If your pitch “(a) is substantially similar to or contains significant elements of a concept Company already had under consideration or in development at the time of my submission or presentation, or (b) is not unique, novel, original, or concrete so as to be entitled to intellectual property protection under the law, or (c) has been made public by anyone at the time of my submission or presentation, or (d) is in the public domain or otherwise would be freely usable by a third person as a member of the general public, or (e) is not protected by federal copyright law, or (f) was not fixed in a tangible means of expression or (g) was, is or may be obtained by Company from other sources, including without limitation, Company's own employees or associates or those of third parties independently of my creation, whether before or after the date of my submission and/or presentation[,]” then Columbia will not be obligated to compensate you for your pitch. 

The agreement also includes some other unfavorable language to those pitching to Columbia. For instance, if you have to sue Columbia, by agreeing to the release you agree to binding arbitration instead of court, and the arbitration will take place in Los Angeles. Additionally, any damages you might get from Columbia are limited to fair market value of the script – at the time of original negotiation. Furthermore, you agree you cannot seek an injunction against Columbia preventing release of any TV show/film/media/etc. produced using your idea during the course of litigation, which can be a major bargaining chip. Also, if you lose in a lawsuit/arbitration, you will pay all of Columbia’s fees. Another interesting piece of language in the release puts the burden on you to prove Columbia didn’t independently develop the idea, had access to it, copied it, and otherwise establish all elements of Columbia’s liability. You also agree that your submission doesn’t presume Columbia took or copied your pitch or otherwise had access to your pitch, other than the person hearing it. 

What steps can you take to protect your idea if you are interested in participating in the pitch process at Wizard World? Based on the language giving Columbia broad exemptions, and as a best practice in general, you want your pitch to be as original as possible, as fully developed as possible, and committed to writing, paper, or other media in some way.

I still believe this to be a worthwhile effort for Columbia to find some different ideas outside of the typical Hollywood landscape. By requiring submissions in advance, they can determine if there are any ideas they are actually interested in hearing before committing resources to attend a Wizard World convention, which can limit their financial burden. Even though the release seems ridiculous and broad, Columbia needs it to manage its risk. Idea theft lawsuits are common in Hollywood, and it’s the main reason most companies don’t accept unsolicited pitches.

If you choose to participate, good luck, have fun, do your best, and don’t forget to negotiate. 

Authorizing Fan Art

Note: When I’m discussing fan art, I am using the term broadly to include any fan-made work, including art, film, books, or music.

I’ve written about fan art issues a few times, including an initial piece on the legality of fan art and one about case law/status. It’s a topic I revisit for a few reasons. First, while it is seemingly a black or white—legal or not—issue, it exists in a gray area of the law. Second, with the continued rise of fan cultures and the internet, it’s a topic that won’t be going away anytime soon. And, finally, it places owners of famous intellectual property in a difficult position of trying to protect their rights while also not alienating fans. Today’s post is going to explore some programs implemented by intellectual property owners attempting to address that last topic.

            Fan art can be a blessing and a curse for intellectual property (IP) owners. For instance, it’s exciting and healthy for your brand if fans generate art featuring it. It shows the brand is popular, and your fans are engaged. However, it can be a problem when the fan art negatively impacts the original IP, either through competing directly with the original IP or through tarnishing the brand’s image. How can IP owners navigate the area between shutting down all fan art to protect themselves and encouraging fan engagement? One of the options IP owners are exploring is allowing fans to create fan art, but giving them conditions to follow.

            AsI wrote about previously, CBS/Paramount, the owners of Star Trek, ran into a problem when a group raised over $1,000,000 on Kickstarter to fund production of a “fan film.” CBS/Paramount sued to stop production of this film, even though they had never stopped production of a fan film or TV series previously. There was an outcry from the fandom, and even the director of the next major Star Trek film, Justin Lin, expressed his displeasure with the tactic. This is what prompted CBS/Paramount to issue official guidelines for fan films, which I wrote about here. If fans follow the rules, then they won’t receive a nasty letter or lawsuit from CBS/Paramount.

            More recently, Marvel announced a service allowing fans to create their own comics. However, it was mocked when it was announced because of the terms imposed. Among the lengthy conditions, comics the users create aren’t supposed to include:

· Content that could frighten or upset young children or the parents of young children

· Sexually explicit images (pornography, etc.)

· Suggestive or revealing images (bare midriffs, legs, etc.)

· Sensationalism (killer bees, gossip, aliens, scandal, etc.)

· Potentially slanderous or libelous content

· Obscenity, bad or offensive language, proxies for bad or offensive language (X@#%!), body parts, or noises related to bodily functions

· Politics (lobbyists, PAC sites, political campaigns, alternative lifestyle advocacies)

· Death

· Discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age

· Illegal activities or any materials that infringe or assist others to infringe upon any copyright, trademark, or any other intellectual property rights

· Misleading language

· Images or content that is in any way unlawful, harmful, threatening, defamatory, obscene, or harassing

· Unauthorized or unapproved use of Marvel creative assets (such as talent, logos, characters, movie logos, theme park imagery, color scheme, font[s])

· A copy or parody of current or past Marvel advertising creative (from any media form)

· Other controversial topics (social issues, etc.)

· Implied affiliation or favored status with Marvel

· Double entendres

· Amusement parks (other than Disney amusement parks)

· Movie studios (other than studios affiliated with Marvel)

· Animated movies (other than Marvel or Disney movies)

· Guns (firearms, bullets, etc.)

Obviously, the above list, which only includes some of the restrictions in the terms of use, puts some serious limitations on what is authorized, and it’s clear Marvel wants to limit material that is embarrassing, confusing, or risky to the company. Personally, I am impressed by this list. It’s hard to come up with every possible scenario that could embarrass Marvel/Disney, but whoever came up with this list has come close.

            Amazon also offers a program for aspiring fan writers. It’s called Amazon Worlds, and it allows fans to write new stories set in fictional universes, such as  Gossip Girl, The Vampire Diaries, G.I. Joe, and many of the Valiant Entertainment comic book titles. Amazon worked out a deal with the original IP owners to publish this fan fiction, and the IP owner and the fan split the royalties, with the fan receiving between 20-35% of net revenue from e-books. I doubt anyone will get rich off of this, but it is one of the only places I know where a fan can publish a work set in an established, fictional universe and make money off of it without specter of a lawsuit, or at least a cease-and-desist letter, lurking. Again, the IP owners place restrictions on what can be done. For example, here are the guidelines for Valiant’s X-O Manowar:

1.       Pornography: We don't accept pornography or offensive depictions of graphic sexual acts.

2.       Offensive Content: We don't accept offensive content, including but not limited to racial slurs, excessively graphic or violent material, or excessive use of foul language.

3.       Illegal and Infringing Content: We take violations of laws and proprietary rights very seriously. It is the authors' responsibility to ensure that their content doesn't violate laws or copyright, trademark, privacy, publicity, or other rights.

4.       Poor Customer Experience: We don't accept books that provide a poor customer experience. Examples include poorly formatted books and books with misleading titles, cover art, or product descriptions. We reserve the right to determine whether content provides a poor customer experience.

5.       Excessive Use of Brands: We don't accept the excessive use of brand names or the inclusion of brand names for paid advertising or promotion.

6.       Crossover: No crossovers from other Worlds are permitted, meaning your work may not include elements of any copyright-protected book, movie, or other property outside of the elements of this World.

7.       The entries must present the protagonist(s), supporting character(s), and antagonist(s) in-character.

8.       No use of profane language or offensive racial, cultural, or sexual slurs.

9.       No extreme or persistent violence, including but not limited to descriptions of blood, gore, and/or bodily fluids.

10.    No erotica, including frequent, prominent, or graphic descriptions of sexual acts.

11.    No references to acquiring, using, or being under the influence of illegal drugs.

12.    No wanton disregard for scientific and historical accuracy.

13.    Aric does not act primitive or of lesser intellect despite being new to the social customs and technological advancements of the 21st Century. Aric is an intelligent, thinking man who can understand modern ideas in the context of his era of origin.

14.    Despite being a man from another time, Aric does not torture his enemies, nor does he engage in violence against children.

Many of the restrictions set forth here are similar to the others we’ve seen. IP owners are primarily worried about a fan creating a work that tarnishes or devalues their brand or exposes them to liability, and some also have concerns about fans profiting from their fan-made works.

            Fan art can be fun to create, and it can help aspiring writers and artists develop and refine their skills. If you want to create legal, authorized fan art, check to see if the brand you love has issued guidelines allowing fans to create content. You might be surprised, and if they’re generous, you might be able to make a little money. If the brand you want to use hasn’t issued guidelines, proceed carefully. Following the guidelines set forth by other brands might keep you out of trouble, but there is still risk whenever you create and distribute a work featuring intellectual property you don’t own.