“What is RIGHT with RIGHTS?” March 1, 2010 – Posted in: A Picture's Worth, Blog, Featured Columns – Tags: A Pictures' Worth, Comics, copyright, Kirby, Marvel Comics, Mike Pascale, thor, Wednesday's Heroes
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!