Posts Tagged ‘Trademark’

Copyright Law is Changing! Is it Time to Hit the Panic Button?

Tuesday, July 28th, 2015

Copyright law is about to change and creative people all across the U.S. are going into panic mode!

Everyone else could care less. Both reactions are extreme because copyright law as it stands today effects so much of our daily lives that complete enforcement of it would be nothing short of dystopian.

If you care at all, and you should, educating yourself on the current copyright law is important. It can easily be found at http://www.copyright.gov/title17/.

If you want to understand what the fuss is about concerning potential changes then you need to watch this tedious but eye opening podcast video. https://www.youtube.com/watch?v=kDoztLDF73I

The most significant part of the Copyright Act of 1976 that most people either do not understand or appreciate is that you possess ownership of copyright the moment you express a thought by affixing it to something tangible. There is no requirement to register a copyright or even attach a notice though both are beneficial. Every single person has copyright ownership of every original scribble, note, photo, video, doodle, craft, song, tune or anything else tangible that they ever created from the moment they created it provided they did not copy it from something else. Copying something without permission would be infringement of another’s copyright.

NOTE: Ideas are not protected by copyright! Only the physical expression of an idea is. Someone can have the same idea for a story or a picture but if how they tell that story or draw that picture is different there can be no conflict.

Instant ownership of copyright makes life a lot easier for creative people because they do not have to pay to register every single thing they create but in a world where now everyone is creative and able to publish their thoughts and pictures tangibly on the internet we are inundated with copyrighted material at every turn and surrounded by copyright holders.

Most people are not aware of the significance or value of copyright and consequently, as we go about our daily lives sharing or copying or quoting all the material we have such easy access to, we have unwittingly become a nation self-entitled of copyright infringers!

John Tehranian outlines in his must read paper Infringement Nation: Copyright Reform and the Law/Norm Gap”  how easy it is to rack up a huge infringement liability on a daily basis.

“By the end of the day, John has infringed the copyrights of twenty emails, three legal articles, an architectural rendering, a poem, five photographs, an animated character, a musical composition, a painting, and fifty notes and drawings. All told, he has committed at least eighty-three acts of infringement and faces liability in the amount of $12.45 million (to say nothing of potential criminal charges). There is nothing particularly extraordinary about John’s activities. Yet if copyright holders were inclined to enforce their rights to the maximum extent allowed by law, he would be indisputably liable for a mind-boggling $4.544 billion in potential damages each year. And, surprisingly, he has not even committed a single act of infringement through P2P file sharing. Such an outcome flies in the face of our basic sense of justice. Indeed, one must either irrationally conclude that John is a criminal infringer—a veritable grand larcenist—or blithely surmise that copyright law must not mean what it appears to say. Something is clearly amiss. Moreover, the troublesome gap between copyright law and norms has grown only wider in recent years.”

As technology continues to advance it is becoming easier identify when we are being infringed upon or pirated. This is great for people who make their living creating things but what about people who may want to make their living suing people for infringing on their copyrights of photos of the family dog  or that viral cat video we all like to share? Do we really want to live in that kind of police state? Will we stop being creative because we are afraid of being infringed upon? Will we stop sharing  socially for fear of being accused of infringement?

Before 1976, copyrights had to be registered with the U.S. Copyright Office similar to registering a patent or a trademark. This helped to identify copyrights that had a perceived value and allowed others to be considered public domain. Registering was definitely less convenient and more costly than the current system but may be not such a bad thing.  Unfortunately, part of the changes to copyright procedure currently being considered is privatizing the registration process. Are creatives about to be corralled into money making scheme for some greedy corporate entity with huge lobby interests in Washington?

In the aforementioned podcast video at about 20:30 in to it, editorial illustrator and copyright champion, Brad Holland, talks about a company called the Copyright Clearance Center who already conveniently owns the website www.copyright.com. He talks in detail about how this company, which has been around since 1978, (the year the Copyright Act of 1976 when into actual effect) collects fees from schools libraries and copy centers for permission to copy images and text to the tune of $300 million a year! This is similar to music collection societies like ASCAP or BMI. Mysteriously, however, creators seem to be kept out of the loop when it comes to distribution of these funds collected by the CCC. Apparently they have all the infrastructure in place to register, manage and police copyrights while making boatloads of money at creator’s expense.

Now let’s look at the elephant in the room – Work For Hire. One of the biggest issues in the Copyright Act of 1976 is that it did not do a great job of defining Work For Hire, a point that was vehemently defended by musicians anticipating their ability to terminate rights granted to record labels after 35 years as defined by the Copyright law. This is a glitch that has big companies scrambling to make deals with creators who may be closing in on that term. It is the main reason Prince was able to settle an agreement with Warner Bros. and the Kirby family was able to settle with Marvel/Disney. It is the main reason why a lot of deals are being struck quietly behind closed doors before the proverbial shit hits the fan.

If Copyright law stands as it is, where creators own copyright from the moment of creation, any freelancer who did not sign a declaration of work for hire and was not actually defined as an employee of the company currently holding the copyright could terminate rights of use of their contribution to the work. Anything published after 1975 is currently fair game for future reversions.

Using comics as an example, say I am a letterer of an independent comic of the 1980’s and I was paid to letter a comic by the author or the publisher but as a freelancer and had no signed agreement  that this was exclusively considered Work for Hire. According to copyright law can’t I consider that I am the “author” of the lettering on that comic and copyright holder from the time I penned it to the paper? If I decide I want to revert my rights by terminating the rights of the current holder, can I? If I can revert my rights, any reprint would require new lettering to replace mine or a new deal would need to be struck with me for a new term. Imagine if the Inker or the colorist did the same. This could prevent a work from being republished and it could create havoc for current publishers holding reprint rights.

Imagine if this happens in film where creators from many disciplines come together as freelancers to create a movie. It may sound far fetched but this is the backbone of this revival of the Orphan Works Copyright Act of 2008. It in theory seeks to make works accessible that are unable to be recopied into digital format by Libraries and Schools because copyright permission cannot be obtained by creators that cannot be located.

The argument is that  our culture is being deprived of accessibility to works because of the inadequacies of the copyright law which intends, in part, to restrict perpetual ownership of works so they can be absorbed by the culture that supported and inspired it. This is the reason that the new law intends to have copyrights registered, to enable identifying creators but I bet it will also redefine the Work for Hire clause to prevent the mass migration of rights from corporations to creators. This is a  classic case of misdirection that speculates  most freelancers will not be aware or willing to pay to register copyrights on every work they did thirty-five years ago under a questionable Work for Hire situation, sweeping one big elephant under the rug.

Copyright law has three significant objectives: Identify the copyright holder,  protect the rights of the copyright holder for the term of their copyright and limit terms of copyrights so works can ultimately be absorbed by the society that cultivated it.

I believe it is fair to say that the current copyright law has some inadequacies, mostly in regard to how staggeringly unenforceable it is at its most basic level. Policing every infringement on a daily basis would be impossible and if it were we would not want to live under those conditions. But for those of us that rely on the value of our works and their copyright for our income, it is time to be attentive to how we may be affected by changes and become involved with how a new law is constructed.

Is it time to hit the panic button? Maybe not, but it is time to get educated about copyright and to ensure that any new copyright law benefits everyone fairly.

© 2015 Gerry Giovinco (just in case)

Superheroes Sell Porn to Children

Tuesday, October 14th, 2014

There has been a trend lately to reinvent the images of our favorite superheroes so they seem more realistic and mature in an effort to appeal to an audience that is growing older. Ironically, porn parodies of these same superheroes tend to focus on the brightly colored costumes that superheroes wore when they were deemed too juvenile.

The porn companies appear to value the highly recognizable trademarks of the colorful costumes more than the comic companies do. While Marvel and, more significantly, DC are toning down flashy costumes,  the porn companies are cashing in on all those primary colors!

Which makes you have to wonder, who are they selling their films to?

Superheroes are going through an identity crisis of epic proportions. They want to appeal to everybody so bad that they can’t decide which costume to wear. Now they now have a closet full  spandex variants designed to appeal to each the different target audience.

Lay out a bunch of licensed merchandise and you will clearly see that toys and action figures made for little kids are adorned with the bright and bold costume colors that we have all come to recognize as representative of the world’s greatest superheroes.  As the products become targeted at an older consumer, the  costumes become darker and grittier to the point where they are almost  unrecognizable. This is all a grand scheme to progressively target market. It all makes reasonable sense until you introduce porn into the mix.

An investigative blogger once directly asked Warner Bros., Time Warner Inc., DC Comics, Liberty Media Holdings if they were using superheroes to sell porn to children, insinuating in her open letter that they must be profiting from the porn. Why else would they not be attempting to stop the obvious damaging trademark infringement of properties targeted at the youth market?

We have asked similar questions here at CO2 Comics and the obvious answer is that the porn companies are protected by the use of parody which never explains why DC was able to defend their trademark before, in the 1970′s, when they blocked a film titled XXX Superwoman which was later released as Ms. Magnificent.


Just the fact that people are objecting and asking questions should be enough to argue that there is infringement going on. The longer it is allowed to persist  the tougher it will be to fight if the companies want to.

This  may seem to be just overreaction of a conservative view except that the corporations that preside over these characters are so viciously aggressive when it comes to protecting their trademarks and have such deep pockets that it is very believable that they could stop the porn  if they really wanted to.

Maybe it is just another tier of the grand marketing scheme: bright colors for little kids; dark and gritty for mature readers; bright colors with an “X” for porn.

Just so we don’t get confused, since Halloween is upon us, check out the “slutty,” brightly-colored, licensed superhero costumes being made for young women these days. (many are described as  “adult” but are sold in the “teen” section) Then ask  how off-base this discussion is while bashing DC on their next round of licensed, sexist t-shirts.

Gerry Giovinco



Ten Things We Should All Know About Copyright Law Thanks to Kirby v. Marvel

Tuesday, October 7th, 2014

With very little pomp and circumstance the most famous contentious relationship in the history of comics has finally been amicably settled between the estate of the late Jack Kirby and Marvel Entertainment. The announcement came just one business day before the case was scheduled to be considered for hearing by the Supreme Court of the United States.

Comic historians and fans of both Marvel and Kirby know that the relationship between the two has been tenuous as far back as the mid 1960’s. The feud reached a climax in the late 1980’s when many fans and comic professionals demanded that Marvel fairly compensate him for the wealth of material that he had created which, by all standards, established the foundation on which the company had been built and supported. Marvel never did.

This discussion continued after his death in 1994 though it mostly existed as a blistering boil on the ass of the comics industry establishing Kirby as the poster child of the Creators’ Rights movement replacing Superman creators, Jerry Siegel and Joe Shuster, as the most screwed creator in comics history.

The debate about what Jack Kirby and his heirs were owed, if anything,  became heated in public forums, especially on the internet, exasperated by misinformation, blind opinion, and just plain ignorance of the real matters at hand. Trolls abounded and it often got ugly.

In 2009, in accordance with provisions established in the Copyright Act of 1976, the Kirby Estate filed for termination of Marvel’s copyright claim seeking a reversion of rights which led to a legal battle that was most accurately and meticulously described by Kurt Busiek on a CBR comment thread.

Busiek laid out the truth in no uncertain terms because, as he stated, The amount of misinformation presented in this thread is staggering.” He does a great job of cutting through the he-said-she-said bullshit of the voices of public opinion and pares it down to the cold, hard facts.

Amazingly, it is apparent that too many people, including those in creative fields, do not know the basic elements of copyright law!

If Kirby v. Marvel accomplished anything it should be a better understanding of copyright law by those people that should understand it the most; creators.

Everything you need to know about copyright can be found right here, but it can be a long and agonizing read full of legal jargon.

The following is a simple list of ten important things that creators really need to know about copyright law as it concerns what happened to Jack Kirby.

1. Ideas are not protected! Copyright only protects the expression of an idea that is able to be reproduced in virtually any form.

Two people can have the same idea but their expression of the idea needs to be different. If they are the same, it is assumed that the latter infringed upon the first.

If you “borrow” an idea from someone and create your own expression of it , that is not infringement.

When Stan Lee would give Jack Kirby plot “ideas” verbally in a meeting, unless they were written in the form of a synopsis or script, they could not become copyrighted until Kirby drew the pages of the comic book.

2. The work is protected by copyright the second it is created regardless if you placed a “© 2014 John Hancock” on it or registered it at the Copyright Office.

Placing a copyright notice on your work stakes your claim to it and is a deterrent similar to faux security signs on your front lawn.  The burden of proof, however, is on you and the best and most official way to protect yourself is to register your work.

As mentioned earlier, Kirby’s work was considered copyrighted the second he drew them. It is guaranteed that he never marked them with a © or registered them. The proof that he created them prior to their publication date is all that is necessary and was enough for the Kirby Estate to challenge Marvel.

3. You can sell your copyright after you have created a work.

This is what Kirby did every time he was paid for pages he handed in that were accepted by Marvel. He sold his copyright to the material.

4. You can terminate a grant of copyright after 35 years.

Thanks to the Copyright Act of 1976 creators have a right to terminate grants of copyright that they have sold a to a publisher or another entity.  They can also renegotiate a deal, often in the form of a settlement, just like Prince did after he filed termination papers with his record label.

There is a slim 5-year window within which creators must file to request this termination. Companies are betting that most creators or their heirs will not know about or pay attention to this, allowing the rights to be permanently forfeited to the current holder, like a the money on an expired gift card.

5. None of this matters if you were an employee of the company and created the work on their time. The work will be considered Work-for-Hire and the company that employs you will be considered the author and copyright owner.

Stan Lee was an employee of Marvel. Technically he was management so he has no rights to the material he co-created on the clock or otherwise. His settlement in 2005 was strictly based on an agreement he had regarding his work on the sales of Marvel films, not royalties based on ownership  of copyright.

6. If you are a subcontractor, (freelancer) all of this matters because you initially owned the copyright the second you created the work and you sold that copyright to the publisher. You have a right to request termination of grant after 35 years. If you sold the copyright prior to 1978 you can request termination after 56 years, which was what the Kirby estate did.

Kirby was a freelance subcontractor, regardless of how exclusive his agreement was with Marvel, verbally, written or otherwise, he was not an employee and this was the basis of all the litigation and what the Supreme Court was considering to determine.

7. The duration of a copyright  lasts the life of the author and 70 years after the author’s death.

This means that if the terminations were granted anything Kirby created would be copyrighted until 2064 and  be in the control of the Kirby Estate.

8. For works created Work for Hire the term ends 95 years after its first publication.

If the Supreme court would have decided that Kirby’s work was considered Work for Hire those works owned by Marvel would have begun lapsing  into public domain as early as 2053.

For this reason alone it was in Marvel’s best interest to settle with the Kirby Estate because it just bought them, presumably, an extra 11 years of ownership before the works go into public domain.

9. Copyright and Trademark are not the same thing. While a copyright can expire, a trademark can last indefinitely so long as the owner continues to renew the trademark and aggressively defends it when it is infringed upon.   Copyrighted material, though it can be terminated or lapse into public domain, it cannot be used in commerce in a way that infringes on an existing trademark that is owned by the previous copyright holder.

This means that even if the Kirby Estate were to have terminated the copyrights to the works of Jack Kirby, Marvel would have still owned the trademarks to the characters. It would have been very difficult for the works to be marketed without infringing on Marvel’s trademarks, limiting the profitability of the works.

10. All things considered an amicable settlement is usually the best case scenario.

All anybody ever wanted was to see Jack Kirby treated fairly for all the incredible work he did as possibly the greatest comic creator of all time. It is a shame that he did not live to enjoy the satisfaction of  a deal that, by all expectations, appears would have made him happy. It was clear that throughout his career his main goal was simply to support his family who has, expressed satisfaction with their undisclosed deal.

The Jack Kirby experience is a lesson that must be learned by all creators so that it not be continually repeated. Know copyright law. Understand agreements. Make good deals. Defend your rights. Profit fairly from your work. These are all things that creators should be as focused on as much as they are focused on their talent and creations. They all go hand-in-hand to provide lifelong satisfaction from the hard work involved.

Gerry Giovinco



SUPERHEROES™: The Never Ending Bullshit – Truth, Justice and Corporate Greed Part 1

Tuesday, November 5th, 2013

TRUTH: The PBS documentary, Superheroes: The Never Ending Battle flashed onto the screen revealing in it’s title the first and, in my opinion, major obscured truth of the series. How do you accurately tell the history of superheroes without disclosing that the word Superheroes is jointly trademarked by Marvel and DC? This information is not mentioned at all during the entire three hour series and is not even noted in the credits.

The concept of superheroes is then immediately defined as modern American mythology, American gods, American pioneers and an American art form. If It is so American why does the series focuses almost entirely on the properties of only Marvel and DC excluding a huge array of other publishers (mostly American) that have produced superhero comics over the last 75 years? This would be like doing a documentary of the history of the automobile in America and only focusing on product made by  Ford and General Motors.

The documentary  does mention that at one time, just two years after the publication of the first appearance of Superman, there were as many as two dozen publishers putting out 150 comics based on superheroes though only Timely (Marvel), Quality and Fox were named and all of the characters shown are currently owned by Marvel or DC. There is then a fifty year gap until the next publisher of superhero comics is mentioned and that is Image formed by a renegade group of Marvel artists.

One character highlighted as having dominated Superman in the market notably because his alter ego is the young boy, Billy Batson, was Captain Marvel.  There was no insight, however that “The Big Red Cheese” had been published by Fawcett and that DC had won a trademark infringement suit against Fawcett claiming that Captain Marvel was too much like Superman and shut him down. No insight that Marvel hijacked the trademark  before DC could license the rights to the property in 1972 before finally purchasing it entirely in 1991. No dirt to tarnish the super clean image of Superheroes. No dirt to tarnish Marvel and DC.

Superheroes are part of the fabric of our lives as Americans. The concept of superheroes is referred to every day by average people. The idea of being the best, having unique ability, and a desire to conquer obstacles is fundamental to the American Dream. Superman may have defined the concept but it is our culture that has embraced it. We deserve the whole truth.

It is a mistake to reduce a documentary about superheroes to a promotional piece for two major corporations whose only real interest in the characters is their bottom line. I would have expected more from PBS. I would liked to have seen more about all the different perspective of superheroes from different cultures and different media.

Where were the superheroes from books, cartoons and video games that are not from the big two?

Where were other Golden Age superheroes Blue Bolt, Captain Courageous, Captain Future, Doc Savage, Fantoman, Fighting American, Mandrake the Magician, The Spirit, Spy Smasher?

Where were Mighty Mouse, Underdog, Super Chicken, Blue Falcon, Space Ghost, the Mighty Heroes, the Incredibles?

Where were superheroes from other comic books? No T.H.U.N.D.E.R. Agents, DNAgents, Elementals, Justice Machine, Zot!, Badger, the Tick, or Teenage Mutant Ninja Turtles?

Where were the other female Superheroes besides Wonder Woman, such as Black Cat, Miss Espionage, Moon Girl, Sheena Queen of the Jungle?

There is a seemingly endless list of alternative characters that could at least have been referred to but were not. I assume because it would not have been in the best interest of the holders of the Superhero trademark, Marvel and DC.

“Truth Justice and the American Way” is the byline that has become synonymous with superheroes yet the truth in Superheroes: The Never Ending Battle has been distorted by omission. That which did not glorify Marvel and DC was swept under the rug and the few foibles that were presented, necessary to humanize the corporations, were quickly acknowledged, rectified and dismissed like the resolution of a 1960’s sitcom according to this documentary.

Just as the series distorts Truth it also turns a blind eye to Justice especially regarding creators rights. Next week I will shed my opinion on that in part two of SUPERHEROES™: The Never Ending Bullshit – Truth, Justice and Corporate Greed

Making Comics Because We Want to,

Gerry Giovinco



Superheroes™: The Never Ending Bullshit

Tuesday, October 29th, 2013

“Superheroes: The Never Ending Battle” is a three part documentary that recently has been airing on PBS. If you hurry you can also watch it streaming on the PBS website right here.

On the surface this series seems to be a beautifully produced and thoughtful presentation about the history of superheroes and comic books in America and their influence throughout the world.

Most comic fans that grew up reading comics or enjoying superheroes in any era will wax nostalgic as they see the devotion that is poured into the process of documenting how the creators of superhero adventures were influenced by the world around them.

The highlight of the series for me were video interjections by legendary comic creators, many of whom have already passed away. Watching Joe Simon, Jack Kirby, Joe Kubert, Jerry Robinson, and Carmine Infantino speak about comics couldn’t help but choke me up.

The series also did a wonderful job of representing women in the industry with video commentary by Ramona Fradon, Jennette Kahn, Trina Robbins, Louise Simonson, and Christina Strain.

I would love to say that this was a benchmark documentary about the history of comics but I can’t because what I witnessed was more like propaganda mechanism for Marvel and DC. This series in all of its splendor effectively trivialized any accomplishments in the battle for creators rights. It completely ignored the influence of the Direct Market. It  erased the impact of decades of Independent comics with the notable exception of Image. No mentions off the tremendous impact that European or Japanese comics had.

I realize that it is unrealistic to expect every last detail of a 75 year history into a three hour documentary. I also recognize now, more clearly than ever, why the word superhero and the derivatives of it should not be allowed to be used as a trademark jointly by Marvel and DC exclusively.

What this series did effectively accomplish was to blur the distinction between the history of Supeheroes™ and the history of Comic Books as a whole by defining the impression for the general public that Superheroes™ = Comic Books and that Comic Books = Marvel and DC with the tip of a hat to Image, apparently the only independent to successfully publish another unique superhero.

NEWS FLASH! There are many independent publishers that have made comic books that featured superheroes! Superheroes also exist in other media and in other countries. All characters represented in the superhero genre are NOT owned by only Marvel and DC as much as they would like you to think that. This was not represented at all in this documentary and I believe it is unfair to dismiss the accomplishments and struggles of so many who also had great superhero stories to tell.

“Superheroes: The Never Ending Battle” is typical of the type of bullshit that big corporations do to gloss over the undesired truth.  “Smear lipstick on that pig and everyone will be happy and buy into what we have to sell.” ” Pay no attention to the man behind the curtain!”

Truth be told, there could have been a three part series just on the battles that Jerry Siegel and Joe Shuster fought over their rights to Superman or the battles that Jack Kirby had with Marvel for compensation and to have his art returned.

There could be a three part series on the rise of the Direct Market and how the barrage of  quality Independent publishing in the 1980’s had  Marvel and DC on the ropes.

There could be a three part series on how the internet and digital delivery has changed how comics are created published and viewed.

They would all represent true and vital information for anyone interested in an accurate history of the never ending battle of creating superheroes and comics in a market dominated by corporate interests intent on squelching any potential competition to their mythic intellectual property that they gained from the exploitation of the imaginations of mostly young, impoverished children of immigrants searching for and expressing their own American Dream.

If you have watched the series and got that great warm and fuzzy superhero nostalgic rush, I want you to know that I had it too.  I also have a tremendously deep appreciation for the medium of comics and a tremendous respect for the genre of superheroes and though it is wonderful to see the genre presented in such a positive light I think it would be great if audiences understood and valued the true history of superheroes and not the mythology of the mythology influenced only by two enormous corporations.

Next week I will begin a series of my own on this blog that will take a closer look at how “Superheroes: The Never Ending Battle” diluted the real history of superheroes.

Making Comics Because We Want to,

Gerry Giovinco



Creator’s Rights: The Rise of the UNDEAD!

Tuesday, September 17th, 2013

For anyone who thought that  the Work for Hire clause, whether it was specified in a contract or stamped on the back of a check, was the final answer regarding creator’s rights; think again!

The battle for creator’s rights is experiencing a ZOMBIE APOCALYPSE of its own as issues once considered dead and buried by corporate gate keepers are raising their hoary heads and experiencing triumph against the devil himself.

Appropriately, Ghost Rider, the supernatural motorcyclist who sold his soul to the devil and consequently bursts into hellfire complete with a flaming skull whenever he encounters evil, has become the latest character championed by the challenge of his creator.

Gary Friedrich settled a deal with Marvel after the Second Court of Appeals decided that the work for hire contract signed in 1978 was ambiguous on the topic of copyright renewal.

His victory has highlighted the fact that there can be hope against what appears to be insurmountable odds especially after Marvel had knocked him down for the count and even won a countersuit against him for trademark violation seeking retribution of $17,000 for monies he made from selling autographed prints of Ghost Rider at comic conventions.

Never give up the fight!

Creator’s rights has been a battle going on in this industry since it began and every time the issue seems dead it claws back from the grave. Jerry Siegle and Joe Shuster were zombies extraordinaire. No creators fought back so frequently and so often reviving dead issues and achieving a number of victories along the way, than these two. Even after their own deaths their family still haunts DC and Warner Brothers with challenges.

The huge popularity of superheroes in film has certainly stirred the dead more than any other event. The immense profits made from films and merchandising of comic book characters that were unimaginable decades ago have breathed new vigor into aging creators who may have given up the fight long ago but now see the fortunes that are slipping through their fingers.

Suddenly a few of these stalwart underdogs have played a winning hand.

It is important to pay close attention to victories because they are often shrouded in secretive settlements that, though they may satisfy and reward the challenges of the creator are designed to ultimately protect the stake of the corporate holder. Terms of agreement that require secrecy lend little support to other challengers except to grant hope that they too can come to a settlement that will satisfy their unique complaint.

Stan Lee took Marvel to task in 2002 for royalties owed for characters he co-created.  He was awarded a $10 million settlement in 2005 according to Marvel’s first quarter operating results that year. This of course begs to question, what about Steve Ditko and the Jack Kirby estate?

Archie Comics settled with Ken Penders regarding rights to the characters he created while working on stories for Sonic the Hedgehog and Knuckles comics. His characters have shown up in reprints, comics, and video games. Victory in hand, he now has his sights set on Sega and Electronic Arts. Sega would not event participate with Archie in the original proceedings making Archie’s defense more laughable than it was. Penders plans to utilize the characters he created in a graphic novel series entitled The Lara-Su Chronicles.

Jim Starlin’s relationship has seemed so warm and fuzzy with Marvel since it was revealed that Thanos, a character he created, would be a major player in the Avengers film franchise as well as the Guardians of the Galaxy. Little has been made public, but one can only assume that a settlement has been reached since Starlin can prove that he created Thanos before he even came to work for Marvel.

Recently, in a congratulatory comment  to Gary Friedrich made via Facebook and Twitter, artist Bob Layton publicly stated that  he and David Michelinie had settled with Marvel over rights issues to a character created during their long run on Iron Man.

Does this activity indicate that the tide is turning? Is it possible the the courts are finally recognizing what we have known for years; that creators of intellectual property in the comic industry have been grossly taken advantage of? Is public sentiment starting to influence the position of the courts and the corporations? Is the work for hire practice of the major comic companies finally damaging the value of their good will?

A lot of creators have been cheated over the decades. A lot of challenges have laid buried beneath heaps of residue from corporate greed, abuse and the creator’s fear of reprisal.

There is a tremor now. That which was once thought dead is rising from the loosened earth. Like the Ghost Rider, injustice is igniting its fury. A new day is coming and that which was dead will be no more. Creator’s Rights will rise like the undead and the  APOCALYPSE will be waged upon corporate greed.

Gerry Giovinco



The New 52: Disrespecting the Dead Guy?

Tuesday, September 10th, 2013

Knee-jerk reaction? Maybe, but when I saw a headline on Bleeding Cool that the late Jack Kirby was being used as a character in DC’s New 52 I almost had an aneurism.

What are they thinking?!

Fanboy homage  aside, Jack Kirby is a man whose legacy is, beside being arguably the greatest and most dominant comic creator of  all time, that he and his heirs have been stripped of creator ownership of most of his creations developed  in his five decades in the business. We are not talking deprivation of scant royalties either. He was significantly responsible for the most marketable characters at Marvel, a company that is currently worth several billions of dollars. Jack Kirby has been violated by the industry he played a major role in building. Gang raped by the industry that he dedicated his life’s work to.

I was surprised to discover that Kirby had actually spent more time working for DC than Marvel over his long career and, though this does not account for the ton of work he did for the company in the 40’s and 50’s, it is well documented that DC has fairly paid royalties for his work done late in his career. They proudly claim  that Kirby made more money off of his work  from his New Gods characters than he made from all of his work done for Marvel, citing royalties paid for appearances and merchandising related to the Super Powers series.

That, of course was a different DC comics, lead by creator friendly Jenette Kahn and Paul Levitz who pioneered royalty sharing and creator ownership at a time when independent publishers were forcing the Big Two to recognize the value of creator’s rights.

The new DC, purveyor of the New 52 that is aggressively bastardizing their entire line of characters in a strategic effort to prevent copyright reversion and the immanent threat of public domain, is not so creator friendly.

Ask Alan Moore whose WATCHMEN was ripped from his control and whored out without his consent long after he had been courted with promises of creator ownership of his work. BEFORE WATCHMEN was a slap in the face to anyone who thought DC actually respected creator rights.

Ask Gerry Conway who recently reached out to his fans in an effort to be notified when his creations would appear in various media so he could file forms to be paid royalties due through DC’s “equity participation program.” Conveniently, the new DC is not in the business to notify the creators when their characters are used. The burden of discovery is on the creators and payment is not retroactive.

Ask Jerry Ordway whose work defined DC Comics back in the 80’s and 90’s. He cannot get a lick of work today from the company he helped keep afloat in turbulent times.

Ask the heirs of Jerry Siegel and Joe Shuster who watch the iconic character that these two men created be endlessly rebooted to the point of mutilation where Superman and his story are no longer recognizable, all to protect DC’s ownership of the IP.

The New DC, has no respect for the creators, the characters or the fans. They are run by a narcissistic band of privileged fanboys, focused only on their own singular vision and the bottom line.

So, the thought of Jack Kirby appearing as a character in the New 52 stirs the acid in my gut and makes me want to puke. Kirby deserves better than to have his likeness paraded in faux homage as a cartoon character in a comic book. I imagine the Kirby character showing up in future encyclopedias of the DCU, in animated series and in 3DCGI video games, all with a DC trademark attached.

Worse yet, I imagine Marvel falling in line and parroting DC. Why not? He’s a historical figure. “We’re only trademarking our rendered interpretation of him, like Disney did with Pocahontas.

I’m sure this rant sounds irrational but tell that to fans of Bruce Lee.

Audrey Hepburn,

and Fried Astaire

who have seen their idols resurrected from the dead by advanced media technology to sell whiskey, chocolate and vacuums. At least these commercials were made with compensation to the appropriate estates or heirs.

There was a time when DC would go to great lengths to gain approval of a celebrity’s likeness. They required Neal Adams to get approval for the 170 famous faces that he drew in the 1978 Superman Vs. Muhammad Ali wraparound cover!

I guess they don’t feel the need for approval to use Jack as a character because he is dead.  What’s he going to say, “I’ll sue you?”

While DC is squeezing yet another buck from the legacy of Jack Kirby,  his granddaughter, Jillian, is plugging along with her Kirby4Heroes kirby4heroes.com campaign to raise money for the Hero Initiative to support other comic creators in need. That’s what Jack would have done. It’s what would have made him proud. Her Kirby4Heroes facebook page is a glorious celebration of the joys that her grandfather brought to all of us and the impact he had on popular culture.

She and her family have taken the high road to place Jack on the pedestal he has earned. Do they deserve, as heirs,  to be compensated handsomely for Jack’s contributions to the industry? Absolutely! But it is more important to them that the good will of his name be maintained in a dignified and positive manner.

Jack took enough abuse from the comics industry when he was alive. Can we please show some respect now that he is gone? He will have been 100 in just four years. Is it possible that his centurion celebration will be one of honor rather than a crass marketing bonanza benefiting those that need it the least?

I pray that I see no Jack Kirby action figures with a jointly owned Marvel/DC trademark stamped on his ravaged behind.

Making Comics Because  We Want to

Gerry Giovinco



Public Domain Held Hostage by TradeMark

Tuesday, September 3rd, 2013

Imagine the ultimate crime: Kidnapping all of the princesses of the world in broad daylight, holding them hostage into perpetuity and being celebrated for the act!

Why stop at princesses? How about targeting every other beloved character that has freely belonged to the cultures of the world?

Finally, for the pièce de résistance, orchestrate a bold, premeditated assault on the greatest superheroes of all time!

The weapon used to perpetrate such a dastardly scheme? Two letters: TM that stand for the term Trademark, a declaration that stakes an exclusive claim to the rights of a character design or symbol for as long as it is declared, registered and successfully defended.

The mastermind and perfecter of this nefarious practice is the all powerful Disney Corporation who has successfully shanghaied at least 93 characters that supposedly enjoy public domain status, 11 of which are princesses that they have so rigidly  redefined in the global public perception that it is nearly impossible to convincingly present them without infringing on Disney’s trademark claim.

But, just in case one may try, Disney has also cleverly created multiple variations of each in animated, live action, and toy incarnations of  every shape and size, all trademarked so it is nearly impossible to create an acceptable variation that could safely and successfully compete in the open market.

Read Copyright Duration and the Mickey Mouse Curve

The tactics required to commandeer public domain properties have not been lost on others, especially the two major comic book publishers, Marvel and DC, who have had the foresight to navigate their properties so as never to be lost to public domain. Extensions in copyright duration have preserved their copyright ownership of most properties created after 1929 for at least another twenty years. But even if single stories should lapse it would be impossible to  promote the story or character without infringing on trademark.

Check out EVOLUTION OF THE BATMAN SYMBOL

DC has proven that it intends to cover every base by having created so many variations of every character to the point of establishing an infinite universe where any variation is a conceivable infringement. They have found more ways just to present the simple Bat Symbol that it is now virtually impossible to illustrate a two dimensional bat without infringing. Likewise, the Shield with the S that represents Superman also has so many variations that its defense is impregnable.

A History of Superman, told in 25 logos over 75 years

Like Disney, DC merchandises their characters in every shape size and color to further protect their trademark.

Marvel of course is now owned by Disney and the merchandizing bonanza has not even begun to ferment.

Make no mistake about it, all these recent reboots in origin stories of major superheroes are merely an attempt to protect characters whose original story is bordering on public domain. A few tweaks for a modern audience and the original material becomes passé and will defy current appreciation for the character.

Attempting to market the product wouldn’t matter anyway because no one could package the story using the trademarked name or image of the main characters attached to the story. How much would you pay for a comic whose cover is not much more ambiguous than a brown paper bag?

TM holds our cultural heritage hostage. Where copyright was intended to prevent monopolies by limiting the time one could exclusively control a creation, trademark hands corporations the keys to the vault.

Soon all our mythology, all our fairy tales, all of our fantasy and fiction will be dictated by a limited, powerful and controlling forces that appear innocuous like the one hiding behind the cute mouse ears. We need to be reminded that usually a big mouse is actually a rat.

Making Comics Because  We Want to

Gerry Giovinco



Naked Superheroes?

Monday, June 17th, 2013

There is a battle going on. David verses Goliath (in this case two Goliaths) as independent comics publisher Ray Felix jumps into the ring against Marvel and DC in defense of their allegations that he infringes on their joint trademark of the word superhero when he uses it in the title of his work, A World Without Superheroes.”

Yes, Marvel and DC share the trademark of every variation of the word/term  superhero and pounce on anyone that uses the word to promote any goods or services related to entertainment, toys, apparel, etc. Sort of…

They seem vulnerable to pornographers who have a field day exploiting parodies of all the major superheroes as was detailed in a previous blog post Superheroes Defenseless Against Porn Parodies.” Parodies of the individual characters is one thing but the pornography industry has proven that the word superhero is too generic to be a trademark. They use it everywhere without  the special disclaimers they use to  cover their overexposed behinds in every other instance.

Video intro from Vivid's latest Superhero release Iron Man XXX

Axel Braun, lead director of Vivid Entertainment’sSuperhero” imprint (How is an imprint a parody?!) likes to brag about their extensive team of entertainment lawyers and how they insure that they are always within the boundaries of the parody law.They use the word superhero blatantly in the imprint’s logo that simply reads “Vivid XXX Super Heroes.”It is on the cover of all of their DVD’s. It is in the title sequence of the videos and previews. They even have a magazine titled “Vivid XXX Superheroes Magazine” that is on its 27th issue.

Various other porn producers released titles like “Chasing Pink 4 ‘Superhero,'” “Superhero Sex-o-rama,” “Superhero Sex Therapist,” and “Pornstar Superheroes” throw the word around like yesterday’s funny pages.

Superhero trademark gone wild

Superheroes is a word that obviously represents what the pornographers are producing and selling just as it represents what Marvel and DC are producing and selling: Characters possessing special powers that wear costumes with capes and masks. They are selling the same thing! Despite what they may be doing in the context of a story isn’t a superhero a superhero even if they get naked?

If pornographers can use the word so freely with no contention it must be a generic term. Confusing right? Doesn’t confusion of a trademark constitute infringement?

Porn parody aside why is the word Superhero still not generic enough for it to be abandoned by the courts as a trademark?

Google superhero and 47.6 MILLION results show up with plenty of links that employ the word superhero as part of their name. Here are a few websites, mostly commercial, from the first three pages of the search:

http://www.thesuperheroquiz.com/

http://www.superherohype.com/

http://www.superherodb.com/

http://www.superherostuff.com/

http://www.superherolife.com/blog/

http://www.schoollunchsuperheroday.com/

http://superherojs.com/

http://www.superherosupplies.com/ I love this one!!!

http://superherodashstl.com/

http://www.reallifesuperheroes.com/

http://www.superheroesthemovie.com

http://www.superherorocks.com/fr_home.cfm

http://www.superheroclubhouse.org/

http://www.superheroes5k.com/

More evidence that the word is generic?

Kids play Superhero in school yards all over and every day forcing overly concerned educators to coin the term Superheroplay. This term refers to kids using their imaginations often acting out as imaginary superheroes with imaginary powers.

There is even a National Superhero Day when everyone is encouraged to be a superhero for a day and news stations ask parents to send in letters explaining why their child is a superhero, not why their kid is Bat Man or Spider-man. Why is their kid Super Jane or Super Johnny?

There is even a growing trend of real-life superheroes patrolling the streets!

Marvel and DC were bold enough to  argue that the word superheroes uniquely defined their products and services and seized opportunity to pull the wool over some blind trademark officer who failed to recognize that the word had been in use since 1917 and specifically  described the entire genre of comics for decades.

Their weak argument is less valid, today. Superheroes have become part of our culture. Superheroes is  a word we use to describe exemplary performances grounded in values of moral behavior (unless of course they are porn stars). It is a word that is ground into the lexicon of our daily lives like other, once trademarked, words such as aspirin, escalator, kerosene, thermos, and zipper that have all been deemed generic.

It is time that the ownership of this trademark is successfully challenged. Maybe the fine lawyers at mysuperherolawyer will take up the cause. They defended their own use of the word successfully!

Ray Felix is fighting the good fight.  The genericization of the word will allow other comics publishers working within the superhero genre to accurately promote their projects to audiences that continue to hunger for fresh and exciting superhero stories that are not limited to the editorial policies of Marvel and DC.

Become a superhero and support Ray Felix. Help free the word superhero from trademark bondage. Renewal of the trademark registration is in 2016. If the courts do not deem it generic by then a unified front might be necessary to free the word.

Why should the Porn Industry be able to sell superheroes and other comics publishers can not. Maybe we can so long as our superheroes get naked. Hey, it works for them.

Making Comics Because We Want to,

Gerry Giovinco


Superheroes Held Hostage as Trademark

Tuesday, June 4th, 2013

There is no doubt that superheroes represent modern mythology. Face it,  we are fascinated by folks with super powers and cool costumes. Why not? Super human characters have captured our imagination since the days of the ancient Egyptians. Who wouldn’t want to have a super power? Most of us at least have dreamt about flying or possessing super strength. Superheroes are permanently ingrained into our culture. They are a fantasy  representation of ultimate traits that we admire. They are who we all would like to be.

The concept of superheroes is so pervasive in our society that many are surprised to learn the word, superheroes  and all variations of it are actually trademarked jointly by  Marvel and DC. These two parent corporations are undoubtedly responsible for most recognizable superheroes in the world today but should that be enough to grant them ownership of the use of the one word that distinctly represents an entire genre of creative works depicted in all forms of media including comic books, novels, video games, film and television not to mention a plethora of merchandised products?

Marvel and DC entered into the rare joint ownership back in 1979, though some suggest that this may have occurred as far back as the 1950’s. It was necessary for them to share the ownership to protect their rights to the word or risk losing it. They renewed the trademark registration as recently as 2006 generating much discussion at the time. A clear explanation of the ramifications of the registration was posted on Comic Book Resources by staff writer Brian Cronin who is also a lawyer in New York City. The post titled, The Superhero Trademark FAQ did a a wonderful job of succinctly answering all of the obvious questions, especially the big one, “How can they trademark the word superhero?”

Apparently, all they had to do was prove, through surveys, that people identified the the word superhero specifically with their product.  Asked, “name a superhero” and any random selection of the general population undoubtedly would have ran off a steady stream of, Superman, Batman, Wonder Woman, Spider-man, Iron Man, Hulk, Captain America; a list of the most iconic superheroes, all owned by Marvel and DC.

Case closed.

Of course there are tons of other superheroes. There is a rich three-quarter of a century history of superheroes that were published by a myriad of other companies but by the late seventies they were all gone and forgotten except by a few diehard fans of the medium and pop culture enthusiasts. The mass market was being funneled into the Direct Market and when a sudden wave of new superheroes emerged in the 1980’s they were corralled into a restrictive market that catered only to enthusiasts that could spot a superhero a mile away if they were labeled one or not. New publishers were frustrated by their inability to use the word on covers and in advertising but were happy to distance their product from the big two in an effort to establish their brand if only in the confines of the local comic shop. The rest of the world was exposed exclusively to Marvel and DC characters.

Nobody could have imagined the scope of the internet then or the future of computer generated special effects.  The impact they both have had on  the new explosion of interest  in superheroes has changed the game. The concept of the superhero has become bigger than the individual characters. Show a generic picture of any man, woman or child in a costume with a mask and a cape and they will easily be identified as a superhero and distinguished as NOT one of the major players in the field. Generic superheroes abound throughout advertising, media and entertainment. Everybody calls them what they are, superheroes.  The people that are in the business of creating new superheroes, other comic publishers, cannot call a spade a spade, however,  without receiving the dreaded cease and desist letter from both Marvel and DC.

This is just another example of how Marvel and DC gang up and continue to put a stranglehold on the growth of the genre and the medium of comics. As an industry we let it happen by not contesting their dictatorship at every turn. One little guy has stood up to fight the good fight. Ray Felix , the publisher of A World Without Superheroes, is taking a stand and challenging them with amazingly little support from others. He needs help from those that care about superheroes. He needs help from us.

What Marvel and DC have done with the trademark of the word, superhero, is a travesty. If anyone has diluted the trademark it is them. When they originally registered the word, a superhero had distinct wholesome qualities that were governed by the Comics Code Authority which was still in effect, though in  weakened sense, in 2006 upon their renewal. They have continually changed their characters rebooting everything from their costume, to sexual orientation. Characters have been killed, re-killed and killed again. Any moral code that was attributed to superheroes has long gone astray. There is little that another publisher could do that would harm the term superhero more than what Marvel and DC have already done. They are not good custodians of the word!

Under their stewardship an entire industry of superhero pornography has been allowed to flourish under the guise of parody. Their trademarked term, superhero, is all over the covers of those videos.  One company has an entire line of them titled “Vivid XXX Superheroes” that features all the major superheroes doing the “nasty.” OK, a parody is a parody and it is protected. Superhero Movie was a parody. There was one of them!  The porn industry uses the trademark “superhero” over and over again with no contention.  There’s even a performance spray for men called Superhero!  What’s the deal?

Imagine Coke-a-Cola standing by idly while a porn film features everyone running around with a Coke bottle hanging out of every orifice. It wouldn’t happen!

Now there is Superhero Play. No, it is not some type of pornography. (See the dilution) It is a term coined by educators describing little kids running around pretending they are superheroes and it is raising concern because it inspires aggressive behavior because superheroes “fight” evil.  Will Marvel and DC want to distance themselves from the word superhero when it becomes a witch-hunt-buzz-word like Horror and Crime comics did in the fifties?

The word superhero is being held hostage as a trademark by Marvel and DC. They protect it when it is convenient and when it offers an opportunity to bully small publishers, toy companies and business owners. They enforce the illusion that all superheroes are their product only  and for any other reason this is why guys like Ray Felix need to be supported, because the world needs to know that all superhero comics do not come from just Marvel and DC.

Making Comics Because We Want to,

Gerry Giovinco



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