Last month I came across another interesting, thought-provoking topic in a LinkedIn group. Someone posted about “diversity in comic books today,” and wondered why, so far, “…there is not a major superhero of Spanish descent. The only one is Zorro.”
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Greetings, losers, boozers, cruisers and hoosiers! Forget about Michael Vick, Michael Vick’s injury and the sucky Eagles. Forget about Tony Romo, his injury and the stupid Cowboys. Forget about dumb relaunches of classic titles and the messing with legends. Forget about cranium-crap Congress and jerky jobs reports. All that matters is ME! Um, and you, of course. Let’s get to your petty problems and some super solutions, shall we?
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For at least a couple decades now, many people in the comic book industry have disliked if not despised the modifier “comic.” Sharing the same origin as “comedy”, it implies comic books are humorous. (In fact, it’s why they earned the prejudiced nickname “funny books.) In fact, time was when I would tell a non-fan I was going to a “comic convention”, he would ask if was going to meet Robin Williams or Jerry Seinfeld. (Yes, Seinfeld is actually a Superman fan, but I doubt he walks the floors of the San Diego Convention Center with Nic Cage hunting for Silver Age Curt Swan art.)
Heck, the only thing that keeps the fields of stand-up comedy and graphic storytelling separate are verbs and modifiers: if you “see” a comic, you’re going to a comedy show. Otherwise you “read”, “buy” or “collect” a comic book. You perform “stand-up” comedy or buy a comic “on the stands.” Hence the industry’s decades-long drive to be taken separately and seriously.
However, when certain things happen, as they have recently, it’s hard not to laugh. This week’s top three:
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Hey, it’s that time of year again! The fanboys’/art collectors’ Super Bowl, Oscars, Grammys and World Cup all rolled into one heaping, overpriced, overcrowded, smelly mess. I’m talking, of course, about Comic-Con International in San Diego, taking place from July 24 through the 27th. (Though it will seem like a month long by the time it’s done.)
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Last time we discussed (well, I answered, you sat and read) queries regarding copyrights and original artwork. Mainly, what rights you the collector of art have when buying a piece of published artwork. (Short answer: pretty much none, other than displaying it for private purposes or when selling. But there’s over 1350 words more that go into detail.
Now, when it comes to commissions (like the inspiring, impressive and more-than-reasonably priced ones here at the wonderful Wednesday’s Heroes, ahem) [ contact Craig to order one of your own! ], the same applies except this time the artist is the “author” (copyright owner). Even if you, the lovely, discerning, generous and brilliant fan, come up with the concept for the commission, the artist owns the rights to the artwork (ideas cannot be copyrighted; only fixed expressions of them). You are paying the artist for his SERVICE (time and labor) as well as a physical piece of art (even though you don’t pay sales tax on it, though I bet some state bureaucrat somewhere could make a valid argument for it, as was once tried in California years ago). You may display the art in your home or on your personal web site to show your collection, or on another site when you want to advertise it for sale. But you cannot use it commercially in any form or claim ownership. This includes using it as your avatar, on a T-shirt, poster, main graphic on your site, and so on, without the artist’s permission. More on this later.
Technically, you should also ALWAYS give the artist credit for his/her work and ownership of rights. Contrary to popular belief, putting something on or pulling something off of the Internet does NOT make it free. Seriously. You just need to add the line, “Art ©2010 Joe Shlabotnick” (unless it’s on the art and already readable where you use it). The characters, if owned by a company like Marvel or DC, would actually be considered trademarks, which would be labelled as “Stupor Man is ™ BC Comics, Inc.” (See examples below.) A work is automatically given copyright protection when it is “fixed into tangible form”. It can also be registered with the Copyright Office for additional protection and benefits, but the initial copyright protection is automatic.
Quick lesson: Copyrights are for tangible, specific expressions of ideas, artwork, writing, music, performances and such. Trademarks associate a logo, symbol, name or graphic with its source. So a specific illustration of a character is copyrighted, but the character itself is basically a trademark because the consumer associates that character with the owner (company). Got it?
(FYI: To reiterate from last week, the proper form for copyright notices is the word “Copyright”, the abbreviation “Copyr.” or the symbol ©–which is made on a Mac by pressing down the Option key and the letter “G”–, followed by the year of publication [or creation, if unpublished], followed by the author/artist’s name. Trademark is indicated with the character/trademark name, followed by, “is a trademark of” or just “is ™” followed by the owner’s name. [The ™ symbol is made on a Mac by holding the Option key and pressing the number "2".])
The point is, the artist deserves some respect for his rights from you, the fan/patron, as much as he does from the publisher (whether or not they get it). Could you use the art and not get sued? Probably. Most artists are not Harlan Ellison® (that’s a registered trademark) and not going to go after a fan, especially one who just bought something from them. Most are just too nice, too naive about the law, too lazy or too busy. (Or just can’t afford it.) But does that mean you should do it anyway? Does it mean it’s “no big deal”? Are you really that kind of person?
Hey, you probably wouldn’t get caught taking money out of a tip jar at your local fast food joint on a slow day when the worker isn’t looking. You probably wouldn’t get caught taking money out of a blind guy’s jar on the street. And you probably wouldn’t get caught groping a member of the opposite sex on a packed subway train or other crowded area. But are you THAT kind of person? (Not if you’re one of the fine readers of this blog!) You will find it’s much easier to just ASK the artist if you can use the art or part of it for something first. I guarantee most of us will be more than accommodative. Much more so than if you just use it and we find out about it thru another party later.
I hope that covers most of your questions. Any others, just email me at [email protected] and I’ll do my best to answer or point you in the right direction. No, I am NOT an attorney, so I’m not giving legal advice; just answering general queries based on my own (limited) knowledge and experience, which is based on a decade of attending the copyright seminars at the San Diego Con given by the amazing Michael Lovitz, IP attorney supreme. I also had Michael and his former firm on retainer when I was publishing and had several conversations about the subject, which I first was fascinated by when I took a “Small Business Law” class in high school and then a “Business for the Artist” class in college. I’ve also read numerous books and articles about the subject, and have corresponded with the US Copyright Office a few times regarding my own registrations since the law was revamped in the late 1970s. (I registered my first copyright when I was 14 years old, a fanzine strip called “The Absurdity”, which is probably still on file at the Library of Congress somewhere.)
In fact, I encourage and urge you to visit the Copyright Office’s excellent and helpful web site, www.copyright.gov, and take advantage of all the FREE articles, info and publications for downloading. You will learn a lot and that will make you more informed when dealing with any such issues in the future.
Hopefully this and the previous blog entry will have given you some info you can use. While we’re at it, come and join me and the other nearly 2,000 folks on the Comicart-L list! And the next time some newbie brings up this topic, you’ll be prepared to answer–or just ignore it like I do!
I’ve been a member of a Yahoo! Group for comic book art collectors, artists, fans and dealers for probably ten years now. (The group, or “list” as it’s usually referred to, originated long before Yahoo! even had Groups; it’s called “Comicart-L”, and I’m guessing the “L” is for List.) One of the most frequent threads that shows up, usually a couple or more times a year, is about rights.
No, it has nothing to do with boxing, minorities–or boxing minorities. It’s about who owns what when it comes to original art. Rather than cover the myriad questions and permutations (and just plain mutations) of the issue, I’ll focus on the answers. Because of the complexity (not to mention ridiculousness, and even downright absurdity) of the subject, we’ll do this in two parts so your eyes and brain don’t glaze over and my fingers go numb from typing. First part is comic art (yes, that rhymes!) and the second will deal with commissions, which of course is a subject very near and dear to us here (dang, another rhyme) at Wednesday’s Heroes.
Here’s how it works:
- The publisher pays the artist to draw a story for a comic book usually owned by the publisher. Said publisher is paying for service, or labor. This is the creative equivalent of going to a mechanic to fix your car: you see two charges on your bill, one for parts and one for labor (usually expressed in time). Same with comics, except the “parts” are supplied by the artist (sometimes the paper is supplied by the publisher, which has caused some legal sticking points in the past, but for sake of this limited discussion we’ll ignore that, just like most courts have). The labor, or “time”, is usually expressed with a page rate.
- The artist’s page rate is $X per page for pencilling, inking, or both, depending on the individual. (Back in the 1950s, it was usually anywhere from $10 to $60 per page; now it’s probably anywhere from $10 to $300. As you can see, the comics industry hasn’t progressed like most others thru the years!)
- The publisher does not pay sales tax on the physical page (like you would with parts for your car repair). Therefore, the physical art tends to belong to the artist, and is usually (supposed to be!) returned to him/her after publication. This enables the artist to help make up for the usually dismal and commercially embarrassing pay rate in the comics field by selling that original, physical artwork on the secondary market (whether thru conventions, web sites like comicartfans.com or dragonberry.com, an auction house, “feeBay”, the artist’s representative, and so on).
- If it’s a major publisher like Marvel, DC, Archie, etc., the art is considered “Work for Hire” under Copyright Law, meaning the publisher, NOT the writer and artist(s), is considered the “author” and therefore sole copyright owner. However, that refers to owner of rights to the story and characters and publishing/reproduction, NOT the physical art. (Some original art from the past will actually have a stamp on the back stating this.)
- In other words, the artist has the right to sell the physical art but not to reproduce (publish) it. Exceptions are made for portfolios, samples used to get more work, and to advertise/sell the original art. The same applies to whomever the physical art is sold to. So if you buy an original page of art, you can display it on your personal collector site (like comicartfans.com), or eBay if you’re selling it, or make a copy to give to a friend or interested buyer. But you cannot “publish” it–print it or put it up on a site like it’s your story or characters, or use it to represent your company. Granted, there are original art dealers who may use images of pages they sell (or have sold) on their business cards or on their site logos, but these may fall under the “fair use” doctrine, which is the same part of copyright law that allows journalists to use select portions of copyrighted material in their reviews and articles. Like everything with copyright law, there’s a fine and fuzzy line.
However, it should be noted that anyone using copyrighted images of the art still must give credit to the copyright owners. If you go to Heritage Auctions’ site (which sells hundreds of pages per year), you’ll see copyright notices on everything. Same with historical articles in magazines, books and especially web sites. Some get it wrong; a great example is TwoMorrows Publishing, one of my favorite publishers of comics history and interview magazines and collections. (I absolutely LOVE most of what they publish and have been buying/reading it since day one.) They’re meticulous about giving copyright credit but often do it incorrectly. The format is a copyright symbol “©” (or the word “Copyright” or abbreviation “Copyr.”), followed by the year of first publication (or creation if an unpublished work) followed by the name of the owner. For some reason, TwoMorrows always uses the date of their publication of the material, which is blatantly wrong and does a disservice to the copyright owners. If they reprint a page first published in 1971, the blurb should read “©1971″ and not “©2010″. The latter implies the company had no rights before then, when actually it’s held the copyright for over 35 years!
So if you are selling or collecting original art or maintaining a blog on the subject and want to use examples of such art on your site or catalog, you can, up to a point. The best advice is that if you’re unsure, just ASK. Some folks think it’s easier to beg forgiveness than to ask permission; they believe if they ask Marvel, DC or anyone else for permission to use something they’ll automatically be turned down and it’s easier to just use it and hope they don’t get a “cease and desist” letter.
Not a good idea!
First, you’d be surprised how understanding some companies are with personal/fan stuff, especially when it comes to promoting their characters and books. (A friend of mine had an issue with selling prints of copyrighted characters from one of the Big Two at a convention last year, and the company’s attorney was actually more lenient than the publisher!)
Second, because you went behind their backs, you’re now on their watch list, and/or their sh** list. Which means they’ll probably be checking on you in the future to make sure you don’t try anything funny next time (not unlike your spouse catching you calling an old flame from the phone bill rather than just asking in the first place). Whereas if you ask permission, it will show respect and professionalism and future issues or questions would most likely go easier. Plus, who knows? You may even end up creating a relationship that may serve you in the future. More flies with honey and all that.
Whatever you do, DON’T go by what you see on the Web or even in print. Just because someone else seems to have gotten away with something doesn’t mean you will too, and doesn’t make it legal either. Heck, no different than what you see in reality. If you saw someone shoplift an action figure and not get caught, would you automatically assume you could too? That they’re free? The only difference between action figures and rights is that one may be fully posable while the other is fully assignable.
Next time, COMMISSIONS and COPYRIGHTS–the non-dynamic duo!
Let me begin this with Cher…
“I was born in the wagon of a travellin’ show
My mama used to dance for the money they’d throw
Papa would do whatever he could
Preach a little gospel, sell a couple bottles of Doctor Good”.
Now that that is out of the way let us proceed.
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