Sunday, March 15, 2020

On Forming a Comic Book Union - Part I

Editor’s Note: This is the first in a three-part series. Also, I am not a practicing union / labor attorney, but I am familiar with the law in these areas.

If there’s no Guild now, if we don’t stand together now, I don’t think there’ll ever be one. In a very real sense, it’s now or never.
– Chris Claremont, 1978.[1]

Every so often, I see talk online about how comic book creators should form a union. It usually comes up after a story emerges about the low pay and, oftentimes, poor treatment of comic book creators in the industry—typically at the hands of a publisher. So, why not form a union? If only it was as easy as it sounds.
In its simplest definition, unions are groups of employees joining together to collectively bargain with employers to set wages, working conditions, benefits, and other job-related conditions. By bargaining together, the employees can offset some of the employer’s inherently strong bargaining power and obtain better results for all employees than each employee could achieve individually.
The law is the greatest obstacle that creators face in attempting to form a union. The National Labor Relations Act prohibits independent contractors from organizing a union. As such, only employees can form unions. With few exceptions, the artists, writers, letterers, and inkers making comics who would benefit most from a union are almost all categorized as independent contractors.
To determine whether someone is an independent contractor, the IRS looks to three categories relevant to the degree of control exerted by an employer and independence:

1.       Behavioral: Does the company control or have the right to control what the worker does and how the worker does his or her job?
2.       Financial: Are the business aspects of the worker’s job controlled by the payer? (these include things like how worker is paid, whether expenses are reimbursed, who provides tools/supplies, etc.)
3.       Type of Relationship: Are there written contracts or employee type benefits (i.e. pension plan, insurance, vacation pay, etc.)? Will the relationship continue and is the work performed a key aspect of the business?[2]

All of the factors must be weighed to determine whether a person is an employee or an independent contractor, and results can vary. In Community for Creative Non-Violence v. Reid, the U.S. Supreme Court in determining whether a sculpture was made by an independent contractor or during the scope of employment stated:

Among the other factors relevant to this inquiry are the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party's discretion over when and how long to work; the method of payment; the hired party's role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party. […] No one of these factors is determinative.[3]

            As mentioned previously, for the most part writers, artists, inkers, and letterers have been categorized as independent contractors by publishers, and they sign agreements stating the works are work-made-for-hire in order to comply with copyright law. This work-made-for-hire agreement allows the publisher to retain ownership and control over the works. In order to overcome the presumption that artists and writers are independent contractors and unionize, the independent contractor status would need to be challenged, and after applying the factors listed above, the National Labor Relations Board or a court would have to find the creators to be in an employment relationship. (Note: Some states have taken actions to address these issues, notably California and its recent AB-5 law that changes the test for classifying independent workers and employees.)
If comic book professionals are not recognized as employees and treated as such by employers, then they cannot join together to bargain or strike. Doing so would be a violation of antitrust law. Only recognized labor unions have the ability to bargain for wages, working conditions, etc., and have the ability to strike. While other groups exist that advocate for better treatment for independent contractors, such as the Graphic Artists Guild, Freelancers Union, etc., these are not true unions, and they have limited direct impact on employee-employer relations.
In my next post, I will discuss some other obstacles union organizers would have to overcome.

[1] Groth, Gary, “The Comics Guild,” The Comics Journal, No. 42 (October 1978).
[3] 490 U.S. 730, 751-52 (internal citations omitted).