Beating a Dead Rabbit

            News broke last week that Image Comics is recalling a recently released comic book, Dead Rabbit, from the market. A bar in New York, also called Dead Rabbit, filed a trademark infringement lawsuit against Image and the retailer Forbidden Planet NYC seeking $2,000,000 in damages and to cease publication of the book, amongst other things. Apparently, the bar is known for producing menus in comic book form and releasing versions the public can buy. They recently received a trademark registration covering Dead Rabbit comic books.

            As readers of my blog will recall, I recommend doing clearance searches on the title of your book before publishing it. Clearance searches are done to prevent situations like this from happening—even though they rarely occur.

I don’t know if the creative team, Gerry Duggan and John McCrea, did a clearance search for Dead Rabbit, but even if they did, it would have been easy to miss this one. Image Comics announced its Dead Rabbit comic book at Image Expo on February 21, 2018.[1] The group owning the Dead Rabbit bar didn’t file a trademark application to cover comic books until February 23, 2018.

Whenever someone conducts a trademark clearance search, the first place they look is the U.S. Patent and Trademark Office’s trademark database. Even if McCrea and Duggan did so before announcing their book, a conflict would not have been readily apparent. The only way for them to discover a potential conflict would have been through general web searches, and I can imagine it would be easy to overlook a bar named Dead Rabbit as a potential conflict for a comic book without some serious investigating.

Image Comics began soliciting orders for Dead Rabbit in July,[2] and the first issue was released on October 3. The bar’s trademark registration was not issued until September 4, 2018. The attorneys representing the bar did not reach out to Image until October 22, and they filed a lawsuit on November 8, one day after the second issue of the comic book was released.

I don’t know why they waited so long after filing the application, and receiving the registration, before contacting Image. One theory would be that by waiting until they have the actual registration issued, they would be in a stronger position to get Image to stop distributing the book. Even though they didn’t have a registered trademark when the Image book was announced, they still have rights to the Dead Rabbit name if they were using it in commerce first. Another theory would be that they waited until Image’s book was published, which would potentially increase liability for any infringing party and put more pressure on the defendants.

From my perspective, this whole lawsuit is a bit of a mess, and, frankly, unnecessary. Maybe I’m too trusting, but had someone reached out to Image or the creators sooner, this situation probably could have been avoided. I’m pretty sure Image and the creators would have changed the title if someone had said, “Hey, we release comics under the Dead Rabbit name.” From my perspective, as someone who has been on both sides of these disputes, it is far easier and cheaper to just change a name than to try and fight a trademark dispute. Instead, by waiting so long, it has created a massive headache for the parties involved, which the cynic in me believes was probably the point.

One final note that I haven’t seen addressed yet. The creative team is not a current party to the lawsuit. They are mentioned in the complaint, but Image and Forbidden Planet are the defendants. At this point, it looks like Image’s attorneys are taking point on negotiating the lawsuit, but this doesn’t mean Duggan and McCrea are off the hook. Many publishing contracts, especially creator-owned ones, include an indemnification provision stating the creators will cover all the costs and legal fees the publisher might incur by publishing their book if it infringes someone else’s rights. If this provision was in Duggan and McCrea’s contract, then Image could seek to recoup their legal fees from the creators. Definitely a scary prospect for the creative team.

    

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[1] http://www.comicon.com/2018/02/21/announcements-at-image-expo-2018/

[2] https://www.newsarama.com/41067-image-comics-october-2018-solicitations.html

Halloween Costumes & Knockoffs - Part II

    Once again, it's my favorite time of year. While a good many people love the Christmas season, Halloween has always been my favorite holiday. I love the costumes, the candy, the decorations, and the scares. 

    Last year, I wrote a piece about Halloween costumes and knockoffs. If you want to re-read it for the legal whys behind knockoff costumes, you can find it here. Otherwise, I’m just going to dive in to some of my favorite knockoff superhero costumes I’ve run across this year. (Note: all links affiliate links)

Oh Captain, my Captain!




This black-clad assassin will make many widows.




This one makes my lawyer-sense tingle.




You have failed this knockoff. (From what I can tell, this is not officially licensed. If it is, I retract my previous statement.)



Are they even trying?




I really need to get the new game.

Book Review: The Amazing Adventures of Kavalier & Clay

            A review of a book released in 2000 isn’t exactly timely, but I think the book is important to cover here nonetheless. I recently finished reading Michael Chabon’s The Amazing Adventures of Kavalier & Clay (affiliate link), and it was fantastic. As a fan of comics, I was aware of the book when it was released, but somehow I didn’t get around to reading it until this year. Personally, I’m glad I waited.

            The book follows the exploits of two cousins, Sam Klayman (aka Clay) and Josef Kavalier, as they enter the comic book industry in New York City in 1939. As tensions rise in Europe leading up to World War II, they create a new character, The Escapist, that quickly rises in fame. The book follows the ups-and-downs of their careers and the twists-and-turns of their lives, and it’s a gripping, entertaining read.

            One of the aspects I enjoyed the most about the book was its near seamless blending of real world fact with fiction. Jerry Siegel, Joe Shuster, Stan Lee, and many other comic book greats inhabit the world of Kavalier & Clay, and the book draws many anecdotes from the era. The story arc of Kavalier & Clay and the ownership of their character draw many parallels to Siegel & Shuster and Superman. Additionally, one of the main turning points of the book involves the Superman lawsuits DC brought against Victor Fox (Wonder Man) and Fawcett (Captain Marvel). There is even a scene where Kavalier & Clay and a group of creators lock themselves in an apartment all weekend to create a 60-page comic book, echoing a similar tale involving Jerry Robinson, the co-creator of the Joker and Robin.

            As I said previously, I’m glad I waited 18 years before reading this book. Some of the nuances and references would have been lost on me had I read it when I was younger. Even so, it is an excellent book for anyone looking for a compelling story set during the golden age of comics.

Contracts and Social Media Policies

            In light of the online uproar over the small publisher Alterna’s recent decision to enforce a social media policy against the creators whose works it publishes, now seems like a good time to talk contracts. The social media policy in question required creators who have work published by Alterna to refrain from using blockchains or other automated means on Twitter to block users from communicating with the creators.

            In general, when a publisher wants to publish your creator-owned work, you will sign a publishing agreement. This agreement will set forth the terms that govern your relationship with the publisher, such as how many issues might be published, how and when you will receive money from sales of your work, and, hopefully, when and how the contract will be terminated. It is also important to remember, in most cases, publishers are not the employers of those whose books they publish. The relationship between the publisher and the creator is contractual, and the contract governs the relationship between the publisher and creator.

            As I’ve written before, it is important to read and understand your contracts. In particular, one thing I’ve seen trip up people before is a reference in the contract to other terms, conditions, or policies that are not actually presented to you. It is up to you to seek them out and review them, and if you sign the agreement, then you are agreeing to them, whether you’ve read them or not. It is not something I have seen often in the comics publishing world, but it is prevalent in other industries.

            If the terms the publisher is trying to enforce against you were not originally agreed upon in the contract, then they are not part of your agreement. You do not have to agree to them. The original contract should still control your relationship. If the publisher is attempting to introduce and enforce new terms or conditions at a later date, then it should be considered a new agreement, or at least a modification to the original agreement requiring both parties’ consent.

            Frankly, a publisher attempting to enforce a policy that was not previously known or agreed upon has put themselves in a difficult position. The only real threat the publisher has is to terminate the publishing agreement, if they are contractually able to do so. Otherwise, the only options are to continue operating under the terms of the previous agreement, which renders their new policy moot, or attempt to get you to agree to the new conditions, which you don’t have to do. If it’s not clear that they can terminate the agreement without your consent, then the publisher potentially could be in breach of the agreement by threatening this course of action or otherwise taking a course of action harmful to the creator. The final option, and the one it appears a number of creators are exercising in this case, is to mutually agree to end the agreement.

            I harp on it a lot, but it is so important: make sure you understand your contracts and your legal rights. Instances like this, where a publisher introduces a new policy many of its creators may disagree with, are not common, but they do occur. By understanding the language in your contracts and your rights, then you can, hopefully, attempt to navigate the situation without too much damage to your work or your brand.

Book Review: Kirby: King of Comics

           Today marks the 101st birthday of Jack Kirby. Kirby, who passed away in 1994, was one of the most prolific comic book creators of his generation. With the popularity and endurance of the characters he created, his legacy reaches far into today’s comic book world. 

Originally published in 2008, Mark Evanier’s Kirby: King of Comics (Anniversary Edition) (affiliate link) received a revised version in 2017, which I recently finished reading. For those wanting to learn more about Kirby, it is a must read.

            The book tracks Kirby’s life from childhood, to his early jobs, through his career in comics, his death, and the legacy he left behind. It is well-written, easy-to-read, and features great Kirby art and anecdotes about the “King,” including an amusing anecdote about how he received that particular title.

            Of particular interest to me were the business and legal issues touched on by the book, particularly during his falling out with Marvel in the 1960s. As related in the book, Kirby was aware of the increasing value of his contributions to Marvel, and, at his wife’s suggestion, even stopped creating new characters for the company to exploit. He frequently tried to obtain a better deal for himself, but was put off or ignored.

When Marvel was sold to Perfect Film and Chemical Corporation, the company was intent on keeping Stan Lee, believing he was main catalyst of Marvel’s success, but it was unaware of and didn’t care about Kirby’s contributions. As Kirby and his lawyers pushed for a better deal, or any deal at that particular point, the new owners stopped responding. The lack of respect for his contributions and the absence of long-term commitments or recognition for his contributions were primary factors in Kirby’s move to DC comics.

            While tales of character ownership, contract disputes, and lawsuits pop-up in the book from time-to-time, the revised edition also includes a chapter on the Kirby family’s attempts to reclaim copyright ownership to some of characters Kirby created for Marvel. While it doesn’t get too far into the legal issues involved, it does track the thoughts and feelings of the family leading up to their filing the copyright termination notices necessary to reclaim ownership, the initial settlement talks, and Disney’s abrupt end to the settlement talks by filing a lawsuit to seek a declaration that the characters Kirby created were made as a work-for-hire. It succinctly tells how the Kirby family lost in the district court and the second circuit, with those courts agreeing that Kirby’s contributions were done as a work-for-hire, and it briefly discusses the attempt to get the case heard before the U.S. Supreme Court, which was rendered moot after Disney/Marvel and the Kirby estate finally settled the case.

            Two themes I took away from the book were Kirby’s desire to provide for his family, and his ability to see value in comics when others didn’t. His focus on providing for his family guided him through many of his career decisions, and it led him to seek new deals to properly reflect his contributions, which he didn’t always receive. When Marvel was sold in the ’60s, the book relates how Kirby felt the value placed on the company was too low, remarking that the character Ant-Man was worth more than what Marvel was sold for. As the book points out, Kirby recognized the potential value in the characters and stories. Time has shown the value of Kirby’s contributions to the world of comics and proved he was right.   

Kirby: King of Comics is a well-crafted biography written by a former assistant, and friend, to Jack Kirby and continues to be the definitive book on his life and legacy.

Update - Hasbro and DC's Bumblebee Trademark Lawsuit

           Last year, I wrote about Hasbro filing a trademark lawsuit against DC Comics. The dispute was about DC's Superhero Girls toys featuring the character Bumblebee, which Hasbro believed infringed on its Bumblebee trademark protecting its Transformers character. I’ve continued to follow the case, and as of August 14, 2018, less than one year after the lawsuit was filed, it appears the parties have settled the case.

            DC’s counsel, James D. Weinberger of the law firm Fross Zelnick Lehrman & Zissu, P.C., filed with the court a letter to request dismissal and stating the parties have reached a settlement in principle. Details of the settlement are not given.

            As I mentioned in my original post, it was unlikely this case would actually see trial or reach a decision on its merits. Since the settlement appears to be confidential, only the parties’ actions going forward will give us clues as to what was agreed upon. I look forward to patrolling the toy aisles to see if there are any apparent changes to the packaging or branding of DC’s Bumblebee toys in the near future. 

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.