Saturday, July 18, 2020

On Forming a Comic Book Union - Part II

Editor’s Note: This is part two of my posts exploring forming a union in the comic book industry. Part I can found here.

        As I mentioned in my previous post, the biggest hurdle comic book creators need to overcome in order to form a union is that most creators are not employees, and the law prohibits independent contractors from forming unions.
        Even if they could overcome the employee vs. independent contractor problem, there are many other hurdles to overcome. First, the political climate for forming unions seems to be at a low. Union membership has been declining for decades.[1] Additionally, many states are passing laws to further weaken unions, and a recent U.S. Supreme Court decision declaring mandatory union dues to be unconstitutional dealt another crippling blow (See Janus v. AFSCME, Furthermore, employers generally do not like their workforce to be organized into a union, and, historically, will attempt to prevent it. All of these factors contribute to the difficulties employees would face in an attempt to form a union.
       Secondly, previous attempts to form a comic book union have been unsuccessful. In the late 1970s, a group of well-known creators explored organizing a union. The Comics Creators Guild featured Neal Adams, Chris Claremont, Paul Levitz, Len Wein, Steve Ditko, Marv Wolfman, and many more. After having several meetings to establish a goal for the nascent Guild, even going so far as to draft contract language and suggest page rates, the effort ultimately didn’t lead anywhere.[2]
        Even though many comic book creators bemoan their working conditions and agree a union would be helpful, getting enough people together to agree on the union and its platform can be challenging. This is partially what happened with the Guild in the late 1970s, and that was when most of the comics in the U.S. were published in New York. In today’s comics industry, publishers and creators are spread throughout the United States and the world, and getting enough agreement to start a union would be difficult, if not impossible.
        Additionally, two important questions would need to be addressed: What types of work would be covered, and which companies would be the “employer” in this situation? To address the first question, it seems obvious most people who support a union would want to see the work performed for DC and Marvel be unionized, and most creators would also want other work-made-for-hire jobs for publishers covered. So, it would be safe to assume that working on licensed properties for publishers, where the publishers retain all intellectual property rights, should be covered.
        I doubt most people would expect creator-owned projects to be covered by union rules, even though it might be nice to use union rates as a starting point for evaluating fair page rates. However, by not applying union rules to creator-owned projects and applying them primarily to work-made-for-hire gigs, some of the works put out by IDW, Dark Horse, Boom! Studios and similar publishers could be covered by union rules while other works might not. This obstacle can be overcome with clarification, but it does lead into the second question of which publishers should be considered “employers.”
        Again, as above, most creators would want Marvel and DC to be considered an employer for union purposes. Since almost all of the books they publish are work-made-for-hire, and the creators do not have any ownership interest in the books they create for Marvel or DC, this is an easy dividing line.
        Furthermore, if we’re using work-made-for-hire books as the dividing line, then it is easier to categorize which other publishers should be considered employers, and when they should be considered employers. If the publisher produces work-made-for-hire books, and the creators do not retain any ownership rights, then that publisher should be considered the employer. If a publisher only distributes creator-owned work and does not have an ownership or otherwise controlling interest in the work, then they should not be considered an employer.
        While a comic book union sounds great, and would likely help improve the wages and working conditions for comic book professionals, it faces major hurdles in getting started.  

Part III of this series will address my final thoughts on the issue.



[2] See The Comics Journal, No. 42 for a comrephensive look at these discussions.