Copyright, Comics, and Compulsory Licensing
(posted by Barry Deutsch)
Reading a post on “Positive Liberty” from back in August, I came across this comment from D. A. Ridgely:
And okay, so we’ll always have people writing bad poetry whether it is copyrighted or not. For the most part, copyright of bad poetry at least could be said to do no harm. The world does not suffer by my refusing to share my high school written poetry with it.
But the world does suffer if real works of good art go uncreated because self-interested artists decide there’s just no point in doing art, better to go get that MBA.
On another blog, Jim Glass wrote:
Say that without copyright you came up with a great, clever cartoon and put it on your web site. What would prevent the scouts from Disney or Fox from just taking it as their own, putting $1 million behind it, making $100 million, and saying screw you. Would you go on to make another cartoon then?
Defenders of our intellectual property system frequently bring this question up: Without intellectual property (in the form of copyrights and trademarks), what incentive will artists have to produce art?
I’m a cartoonist (you can see my cartoons here and here, if you’re curious), and the only art form I know a lot about is cartooning. Most cartoonists are big fans of intellectual property, and get hysterical if we believe copyright is threatened. But copyright and trademark, as they exist in the US, have been a mixed blessing for some of the best American cartoonists.
The problem is, once we have a system of law which says “only entity A can publish stories about such-and-such characters,” then it’s possible for the right of a creator to sell stories about her characters to be taken away. This has, in fact, been the rule for most of comics history. Superman’s creators, Jerry Siegel and Joe Shuster, didn’t own Superman – and, decades later, found themselves penniless and legally forbidden from selling comics featuring their most valuable creation.
Jack Kirby is the most commercially important creator in the history of American comic books. Kirby created or co-created Iron Man, The Hulk, The Fantastic Four, The Silver Surfer, Captain America, Thor, and The X-Men, among others. Collectively, Kirby’s creations are intellectual property worth billions, providing huge profits (and thousands of jobs) not only in comics but also on TV, in movies, and in toys.
But during Kirby’s commercial peak, in the early days of Marvel Comics, Kirby was often unhappy with his pay and with his rights as a creator. Furthermore, Marvel had a “gentleman’s agreement” with DC not to poach artists from each other, and no other comic book company had a stable of valuable superhero properties to hire Kirby to draw. As a result, Kirby’s pay wasn’t in line with the worth of his work.
Kirby didn’t stop working — how could he? He had a family to support. Plus, by all accounts, Kirby loved creating comics. But what Kirby did, according to Mark Evanier’s biography of Kirby, is stop creating new characters for Marvel. Instead, when Kirby thought of a new idea, he’d write it down on a scrap of paper and put the paper aside. Many of those papers got lost.
Eventually, Kirby was hired by DC comics, and he went on to create some powerful work. But DC rarely gave Kirby the support he needed (they even went so far as to have another artist redraw Kirby’s Superman faces, since Kirby’s faces didn’t look like DC’s then-existing house style). Even though his work remained artistically good, Kirby never again hit the same peak commercially, and his pay was still lousy. As soon as Kirby found work outside of comics — creating character sheets for Saturday morning animations — Kirby quit comics.
If the purpose of intellectual property law is to encourage the best artists to create as much of their best work as possible, then IP law failed Jack Kirby. Kirby’s interests weren’t protected. The value of his work made it essential to Marvel Comics to legally divorce Kirby from his creations (they even refused to return his original artwork for years). The fact that any character he made up, he would have been giving up the right to control, encouraged Kirby to withhold characters during his most fertile creative period — ideas that might have been worth millions.
Well, you may say, that’s Kirby’s fault for selling the copyright to his work, rather than holding on to ownership. But suppose Kirby had refused to work with Marvel Comics. Who would that have helped? The world would most likely not have had the X-Men, The Hulk, The Fantastic Four, and many other Kirby creations. Again, IP law would have failed to encourage Kirby to create as much as he could create.
Probably if Jack Kirby were here, he would disagree with me. But I think Kirby would have been better off if it hadn’t been legally possible for Marvel Comics to own the exclusive right to publish the characters Jack Kirby created.
Suppose that instead of our current system, we had a system of compulsory licensing for fictional characters. What this means is that anyone could write or draw any fictional character they like — but if they aren’t the original creator, then they are legally obliged to pay the creator a royalty for use of their work.
So to return to Jack Kirby’s case. Yes, certainly, Kirby would have been pissed off because people were using his characters in ways he didn’t like — but that was frequently the case anyway. (For example, Kirby hated what Stan Lee did with the Silver Surfer character). The difference is, Kirby would have had no motive to withhold characters during his most commercially valuable period, because he wouldn’t have been giving those characters away forever by drawing them.
It’s also likely that Kirby would have been more successful at enticing another publisher to hire him, if Kirby could have offered not just his own services, but his own services on his hit creation The Fantastic Four. That, in turn, might have forced Marvel comics to pay Kirby what Kirby was worth, in order to keep Kirby from moving to another company.
The down side of this is, Kirby might have found himself in the position of competing against another creator’s version of The Fantastic Four. But would this be such a terrible outcome?
1) Kirby might have been better off being able to create The Fantastic Four, and competing with another version of the same characters, than he was in reality — in which, for his entire post-Marvel career, it would have been illegal for Kirby to create a Fantastic Four comic.
2) Kirby would have welcomed being paid for all the times that lesser creators used his creations in their work. This would have provided Kirby with an incentive to keep on creating new characters, rather than our current system, which motivated Kirby to withhold new characters.
3) Comic book consumers would be better off if publishers had to compete to produce the best Fantastic Four comic. This, in turn, would have raised Kirby’s value to his employers.
When I bring this topic up in conversation, I am inevitably asked how I’d feel if someone other than me started making up their own comics about Mirka, the protagonist of my comic book “Hereville.” Woudln’t that make me furious?
I don’t think it would. I think that my version of Mirka — my particular vision — is what makes “Hereville” worth reading (if it is worth reading). If our laws were set up for it, I’d be happy to compete with other creators, to see who’d produce a Mirka that readers want to read. In the end, I think that the best work sometimes has a competitive advantage, and will tend to be remembered most by readers.
And if someone else ends up having a hit best-seller based on my characters — well, at least I’d get royalties. But I might get more than that, because sales of character-based fiction are not a zero-sum game.
For instance, when popular movies are made of comic book characters, sales of that comic book go up. Suppose Joan draws a best-selling ExampleLass comic. That could easily cause the sales of David’s competing ExampleLass comic to go up, because interest in the character is increasing. If David is the creator of ExampleLass, then he’d benefit twice — once in increased sales of his own comic, and then again when Joan pays David royalties.
I’m sure that compulsory licensing would have problems. But so does any imaginable system. The real question is, might compulsory licensing be better than our current system? For many of the best creators, such as Jack Kirby, I think the answer might be “yes.”
Tags: comic books, compulsory licensing, copyright, jack kirby
October 6th, 2008 at 10:23 pm
[...] have a new post, entitled “Copyright, Comics, and Compulsory Licensing,” up at The Art Of The [...]
October 6th, 2008 at 11:01 pm
This is rather a fascinating idea, licensing comics and characters like music. I’m not sure about the compulsory aspect - I would like the creator to be able to say “no” to other people using hir characters in for-profit work, partly because the biggest publishing business is, of course, porn, and partly because I think the creator should have the right to refuse other people using their work and take the financial hit if they so please.
But yeah, I’d love to see cover versions of comics!
October 7th, 2008 at 1:58 am
I’m getting “forbidden” on the first of those links.
October 7th, 2008 at 4:35 am
If the purpose of intellectual property law is to encourage the best artists to create as much of their best work as possible, then IP law failed Jack Kirby.
This is a hell of a stretch. Going by the facts you have presented above, Kirby ended up in the state he was in because he was stuck in a market dominated by collusion between two major players.
Basically, you’re presenting him as a professional industrial designer. (Yes, he also drew pictures, but in your account that’s irrelevant; it was the invention of new characters where he shone.) And he wasn’t being paid enough for his designs, and he couldn’t quit because no other company would hire him.
That’s not a failure of IP law! That’s a market failure! Kirby could have been a machine tool operator and still have run into the same problem (”sorry, but Amalgamated Metal has a gentleman’s agreement with Consolidated Products not to hire each other’s workers, and none of the other factories in town are big enough to need a specialist like you; looks like you’re stuck with Amalgamated. Sucks to be you.”)
Now, there may well be a good argument for IP law, but the travails of Jack Kirby are irrelevant to it.
October 7th, 2008 at 8:49 am
IF in my account, Kirby’s comic creation was irrelevant, then that’s a flaw in my account. What was important wasn’t just his creation of characters, but his drawing and co-writing the characters for a year or two when they began. Marvel would use him to “launch” comic books, and then once the comic book was on firm ground other artists could take over the books.
If Kirby had been able to be hired to draw “The Fantaastic Four” or one of his other hit books by other companies, odds are he could have gotten one of the comics publishers other than DC to hire him. Those companies didn’t hire him because they didn’t have established superhero lines to put him on; but if he could have brought one of his own established titles with him, that would have made hiring him a lot more attractive.
Also, again, Kirby’s lack of market value wasn’t the only problem. After a while, Kirby was explicitly not putting new creations on paper at Marvel because he didn’t want to lose the legal right to write and draw his characters. Kirby’s situation here was caused by IP law, not by the gentleman’s agreement between Marvel and DC.
October 7th, 2008 at 9:34 am
Really interesting.
So an artist has no chance of writing stipulations into their contract? Especially now, seeing the fate of comic book artists before them?
Would they just get laughed out the door?
October 7th, 2008 at 9:36 am
Heck, absent the IP law, Kirby could’ve freelanced and sold his work to the highest bidder, cutting out the “gentleman’s agreement” altogether.
And it doesn’t have to be an either/or. Both the artificially dominated market and the presence of IP law prevented Kirby from realizing the profit he would have on a truly free market. I think you’re (barry) right that IP law is the base of the problem, but I also think it has a lot to do with the fact that Marvel and DC were in a position to have that “gentleman’s agreement”.
October 7th, 2008 at 9:51 am
Hey Barry, I’m gonna have to purchase this print:
http://www.leftycartoons.com/oh-thats-why/
If you note from my post, http://www.theartofthepossible.net/2008/09/29/knocknock/, I have those ridiculous conversations all the time.
That cartoon must go up in the office!
October 7th, 2008 at 10:05 am
Thanks, Alix! Maybe I should start selling prints… What would be a fair price?
***
Quasibill, I agree that the gentleman’s agreement — and that the publishers were in a position to make that agreement — was a huge part of the problem. But I also think IP law was a huge part of the problem, too. We agree on this.
***
Alix (again), it depends on the part of the industry, nowadays. In the superhero and alternative comics area, artists have won a lot of rights over the last 20-30 years. But the problem of “anything you draw for Marvel/DC, you can never draw again without Marvel/DC’s permission” remains true.
In Manga-style comics — including those produced and drawn in America — creators rights are a travesty. It’s just as bad as it was 30 years ago. And this is becoming a much bigger segment of the market.
In daily comic strips, except for a few superstar creators who can force big concessions (like Bill Watterson demanding ownership of Calvin and Hobbes), the rights situation is pretty dismal. The syndicates own all the creators’ work, and can fire them and hire someone new to do the work at any point.
***
Darin, thanks for pointing that out. It’s been fixed.
October 7th, 2008 at 10:20 am
A bit more on the gentleman’s agreement: One reason that was possible, though, is that the system of IP — which makes it possible for Joan Artist to lose the legal right to work on “Joan Artist’s EXAMPLELASS!” if she doesn’t stay with the same publisher — reduces the value of artists and so increases the negotiating power of the companies.
In other words, one reason DC was so quick to give up on hiring Jack Kirby is that they didn’t want to have their characters looking as if they were drawn by Kirby — so much so that, even when they hired Kirby, they still had other artists redraw Kirby’s Superman faces. Hiring Jack Kirby was thus not all that enticing to them, and something they were willing to give up.
If Kirby was more valuable — for instance, if DC could have hired Kirby to draw the same books that were already Kirby best-sellers, except published by DC — that would have made hiring Kirby a lot more enticing. Maybe they still would have made the same gentlemen’s agreement if Kirby had been more valuable in this way — but maybe not. In general, any change of IP law that makes creators more valuable makes gentlemen’s agreements between companies less likely.
October 7th, 2008 at 2:59 pm
“One reason that was possible, though, is that the system of IP”
That was actually one of my points.
Though reading over what I actually wrote, I have to wonder what I was thinking.
I agree wholeheartedly that IP (as it exists and existed) warped the market to allow for ajay’s “market” failure. What it was instead was a government policy. Whether it was an intended outcome or an unintended consequence is open to debate, but the reality is that it was, indeed, government enforced policy that created the near monopoly.
October 7th, 2008 at 4:13 pm
Interesting discussion… I don’t really follow the “superhero” comics, but I thought the whole “work for hire” nature of comics was beginning to be reformed. I like the idea of drawing someone else’s character, though, sort of like Pro Junior from the underground days.
October 7th, 2008 at 9:53 pm
It sounds like the time is ripe for an experiment. Set some formula (1% of cover price for printed, 10% for digital distribution? I am making this up because I know nothing about the economics of comics) at which you’ll license Hereville to anyone (or maybe to anyone who is willing to make the same offer?) Also consider how crossovers will work (I can, off the top of my head, come up with nothing workable, but perhaps you will do better) — does a comic with Mirka, Superman, Storm, Pintsize, and Hob really cost 50%? Maybe it’s x% per percent of pages containing the character?
October 8th, 2008 at 7:43 pm
You make some interesting points, and I agree that a compulsory liscencisng system would be an improvement over the current state of “intellectual property” law. The only quibble I would have would be that such a law would have to be written very carefully in terms of percentages, not flat amounts, and with an explicit loophole for noncommercial derivative works. (As a fanfic writer myself, this is an important point for me.)
A commentator above suggested some kind of veto power over uses the creator finds offensive. While tempting, I’m not sure how this could be combined with a legal respect for parody and the necessity of attribution. Maybe if the original creator has denounced a derivative work, it has to admit as much in the attribution?
However, I’d happily settle for almost any system whereby intellectual property rights couldn’t be bought, only hired.
October 9th, 2008 at 6:16 pm
One of the things that allowed Marvel and DC to maintain their effective duopoly is distribution. There are economies of scale to maintaining large distribution organizations. Also, Wal-mart, or whoever, prefers to deal with a small number of distributors, so there is a tournament effect (ie winner-take-all). Blockbuster pretty much sets (or used to anyway) the explicitness standards for DVD or VHS covers, because they are such a big player. Likewise, Wal-mart is/recently-was a de facto gatekeeper on what can become pop music. If they don’t carry it, the music doesn’t get any traction.
Nowadays, we have the web. So it’s much easier for the “long tail” to get online distribution. (Like our blog host.) Distribution channels still matter for now when dealing with the physical goods. In addition, they serve an endorsing function. Somebody thinks the CD or what have you is good enough to put the labels name on it.
October 10th, 2008 at 1:25 pm
While I’m generally in support of a movement towards compulsory licensing (it’s absolutely done a great deal for music — imagine if bands couldn’t perform cover songs legally without getting permission and paying negotiated rates first!) I don’t think you’ve really zoomed in on the correct problem with this Kirby example.
The aspect of IP law that hosed Kirby (and most of the other great comics creators) isn’t the presence of copyright per se, it’s the existence of work-for-hire. When companies can hire creators, set them to creative work on the clock, and then automatically own the results of that labor, it encourages a situation where such corporations lock out creator-owned properties and instead only allow content that was created by their employees to be published (which is, indeed, pretty much what happened with comics.)
If you eliminate WFH, Kirby would have been the owner of his creations from the beginning.
October 10th, 2008 at 3:23 pm
A couple of small points.
First, although you did not say I was, your post could be read to suggest that I am a “[d]efender… of our intellectual property system.” I am not. I am a defender of the concept of intellectual property as a legitimate part of the legal institution of property.” I’ll gladly agree that the status quo, on the other hand, leaves much to be desired and, given the work-for-hire rules back then, left even more to be desired in Mr. Kirby’s heyday. What I am keen to defend against are certain (fellow) libertarian and other “natural rights” theorists who argue against the legitimacy of intellectual property per se.
Second, hard cases make bad law. I don’t believe there is any system of property rights and remedies that is or can be guaranteed to maximize creativity, protect the legitimate interests of the creators as well as the business entities that market those creative properties, the general public, etc.
Finally, life isn’t a business and neither, in any sort of simple and complete sense, is the creation or appreciation of art. I am glad that I live in a world in which there are markets for art but I feel sorry for anyone who understands creative output as merely another marketable product.
October 14th, 2008 at 9:06 am
Very interesting. But I do feel I should correct you on something. Kirby didn’t jump to DC in the 60s because of a “gentleman’s agreement.” He got in a legal tussle with long time DC editor Jack Schiff over the revenue splitting of the Sky Masters comic strip. Schiff felt Kirby was screwing him out of money and successfully sued him for it. When Kirby did get hired by Carmine Infantino he got a lot of flack for it from within DC even though Schiff had been retired by then.
It’s because of the Sky Masters stuff that Kirby was fired from DC, which lead him going back to Marvel. Considering his treatment during his first run there (doing Captain America) I suspect Marvel wasn’t where he wanted to go, but the only place he really could go if he wanted to draw in his style and get paid a decent rate.