When I was in law
school, I wrote a paper on what I perceived to be unfairness in the Copyright
Act’s work-made-for-hire law. The main reason I believed the law to be unfair
was due to the plight of comic book creators, and a good chunk of the article
went on to highlight some of the unequal treatment creators encountered under this
law. My article proposed a remedy to try and address the problem. It is not my
finest work. But, it does have some concepts worth exploring.
I’ve written
before about work-made-for-hire agreements, and I’ve discussed some lawsuits
creators have brought trying to reclaim characters they created, but I don’t
believe I’ve addressed the basics of why the doctrine exists in the first
place. The work-made-for-hire doctrine was formally adopted in the Copyright
Act of 1909, where it was briefly mentioned,[1]
and it was adopted in more detail in the 1976 Copyright Act. (I previously
discussed it in depth here: http://www.comicslawyer.com/2016/08/work-made-for-hire.html).
The basic rationale behind the doctrine is that an employer has paid an employee
to create the work, and it therefore belongs to the employer.
While writing my
paper in law school, I believed the work-made-for-hire doctrine unfair to comic
book creators. In most employment-related situations, the salary paid to an
employee for their work is adequate. However, when an employee creates
something potentially worth millions of dollars to the company, is it fair for
the employee’s only compensation to be his salary?
The main remedy I
advocated called for reworking the work-made-for-hire doctrine into a mandatory
licensing scheme. Instead of the employee having no rights to his creation, he
would be entitled to a fixed percentage of revenue generated by his creation
outside of its original work. For instance, if the character was originally
introduced in an established title but soon found its way into a stand-alone
comic book, the creator would receive a percentage of profits. Additionally, if
the publisher stopped exploiting the character for a fixed period of time, the
rights to the character would revert back to the creator.
At the time, I thought my idea
novel and a great solution to a problem I believed was prevalent. I
spoke with a few people in the industry at the time, but I was not
privy to the behind-the-scenes deals that were in place between publishers and
their creators. My knowledge of the industry was a far cry from what it is
today. The information on the inner workings of the comic book industry available
today online and through well-researched books far surpasses what was available
a decade ago. Imagine my surprise when I finally learned DC and Marvel had
instituted a system not too dissimilar to my proposal on their own years
before.
The best publicly
available description of this policy I’ve been able to locate was posted by
Mark Waid on his Thrillbent site: http://thrillbent.com/blog/how-dc-contracts-work/.
It’s a fascinating read, and if you haven’t read it you should. Basically, if
creators introduced a new character, they would be paid a small royalty on the
revenue the character generates for the company.
Perhaps
unsurprisingly, I was a little embarrassed when I discovered my “big idea” to
help creators was already put into place years before. The nuts and bolts
differ from what I proposed, but the basic elements are the same. Two
differences separate my proposal from theirs. First, mine would be a change to
copyright law. The programs put in place by the publishers are contractual—at
best. If the additional incentives paid to creators are policies enacted by the
companies and not actual contractual obligations, the company can change the
program without much input from the creator.
Second, I advocated a way for the creators to regain their characters if
the publisher failed to utilize it. While certain creators may be able to
contractually negotiate this happening, most cannot. For those who cannot,
their creations will always belong to the publisher.
Even though I’m
embarrassed I failed to discover when I was writing my paper my solution was
already being implemented, I’m still proud of myself for coming up with an idea
to resolve the problem similar to what was actually used. Not too bad for a
second year law student.
[1] “…or by
an employer for whom such work is made for hire…”, Sec. 23, Copyright Act of
1909.
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