Posts Tagged ‘work-for-hire’

Kirby v. Marvel – The Final Countdown

Tuesday, September 23rd, 2014

The suspense is killing me!

On Sept.  29, 2014 The Supreme Court of the United States will decide if it is going to hear the long embattled case of Kirby v. Marvel Characters, Inc.

If SCOTUS chooses not to hear the case it’s all over and Marvel retains complete ownership of everything that the late Jack Kirby had ever created to be published by them. His heirs will never benefit directly from the billions of dollars that his creations have generated for the industry giant. It will be a sad day, not just for the Kirby family and his fans, but for countless other creatives that had worked freelance as contractors in any field prior to 1976 whose creations will now be officially deemed “work for hire” with no hope of the rights ever being returned to the creator.

This would all seem to fly in the face of the intent of copyright law which, from inception attempted to protect the rights of creators and allow opportunity for revision of those rights even in the instance of commissioned work, with the sole exemption of “Work for Hire” which was not clearly defined until the Copyright Act of 1976.

Hey, this stuff is all very confusing or it would not require the brain trust of the Supreme Court to figure it out. If you don’t believe me just check out this well informed link.

The final brief offered to the Supreme Court on behalf of the Kirby side of the argument can be read here.  It is an eighteen page document full of legal jargon as one would expect but it poses several basic issues that in my mind stand out as pivotal.

If authorship copyright begins at creation and the creator only receives payment if the work is accepted, how is that creator considered an employee in a work for hire situation? What would be the status of works not accepted?

How could Kirby or Marvel have determined the work be “work for hire” if the term was not yet clearly defined by the court prior to 1976?

It is important to remember that the characters in question were created specifically between the years 1958 and 1963 when Kirby helped a then, failing company avoid  closure with a rash of successful characters that he co-created with Stan Lee, though there has been a long contention as to how much Lee contributed considering that the “Marvel Method” required the artist to plot and draw the story which would be scripted later by Lee.

Both men were happy to be getting any check at the time and were just trying to keep the ship afloat. Nobody could have expected the characters to be worth what they are today.

According to this timeline, Kirby had a productive and often tumultuous relationship with Marvel. Publisher, Martin Goodman seemed quite successful in his ability to manipulate Kirby, hashing out deals that were not always sincerely in Jack’s favor.

Kirby did eventually sign a three-year contract with  Marvel in 1975 as shown here where he committed  to do a nearly implausible 13 pages a week for $1100.  That is full script and pencils for two entire issues a month for less than $85 per page at the height of his career. If Kirby was working a normal, forty-hour work week he would have had to have churned out a complete page every three hours just to punch out on time. To consider him an employee is a disgrace.

So, it is up to the Supreme Court, but first they have to decide to hear the case. If they do it will be all fingers and toes crossed for anyone that wishes that Jack Kirby’s family will see a fair decision that will have an impact far greater than just Kirby v. Marvel

As we all gear up for the final countdown, realists know that he chances are slim in this day-and-age where a giant corporation like Marvel/Disney holds all the cards but the idealists can hope that the good guy will win, just like in the comic books.

Either way the decision will be historic and have far-reaching implications.

I know whose side I’m on. How about you?

Gerry Giovinco



Is Stan Lee the Key to a Kirby Family Victory?

Tuesday, May 13th, 2014

On May 15, nine Justices will decide wether the Supreme Court will preside over the Kirby family’s battle to regain copyrights from Marvel and Disney of works co-created by their father, Jack Kirby between the years of 1958 and 1963.

According to the Copyright Act of 1976 the Kirby Estate has the right to request termination of these works provided that the works were not executed as “works for hire,” a term normally associated with work created by an employee of a company.

To date, lower courts have ruled that the works, which include seminal characters that represent the foundation of Marvel’s entire universe, were created at the expense of the corporation and thus are considered work for hire.

Convincing the highest court in the land to both hear the case and to rule in favor of the Kirby Estate may require a miracle of epic proportions equivalent to the great feats of the  many superheroes derived from Jack Kirby’s fertile imagination.

The most unlikely and unwitting hero of this legal drama, however, might actually be Stan Lee who stood as Kirby’s collaborator on all of these creations with the exception of Captain America who Jack created with Joe Simon in 1941.

The idea that Stan the Man, Marvel’s biggest cheerleader, could possibly help the Kirby case may seem ludicrous at first but it was by his hand that a cosmic ball could possibly have been set in motion. His formulation of the so-called “Marvel Method” of producing comics where he would suggest an idea to the artist who would then visually plot an entire story that Stan would later script  the dialogue for could undo the work for hire strategy at its root.

This method of creating comics was new and unique to Marvel and was far from consistent with industry practice at the time where a full script would be handed in by the writer for the penciler to follow. Writers were paid to write. Pencilers were paid to draw.

Jack Kirby & Steve Ditko

It is well documented that Jack Kirby and Steve Ditko, the earliest participants with Lee of this industry bucking practice, were unhappy that Lee was paid full writing fees and they only received standard penciling fees for their work. They both felt that they should be paid and credited for their share of the writing since they were essentially plotting the entire story, a standard duty of the writer.  Their dissatisfaction with the inequities of the practice ultimately led them both to leave Marvel in protest.

Jack’s duties as a penciler were above and beyond what was considered industry standard at the time. As one of the most prolific pencilers of the era he easily deserved at least the standard page rate he was paid for traditional penciling that did not require the visual plotting unaided by a script. He should have been paid more for the extra work required by the “Marvel Method” but he was not.

If Jack Kirby was not paid for his contribution to the writing of the stories, even though it was rendered visually, how can his contribution be considered work for hire?

Stan Lee has very publicly and proudly described the Marvel Method for decades as part of their formula for success. Lee certainly was not paid less for the work load of the writing chores that he passed to the penciler.

Stan Lee is also a poster child for negotiating a Marvel settlement for his role in creating the Marvel Universe. If Stan Lee and Jack Kirby are equally responsible for creating most of the successful characters at Marvel, how can it be justified that Lee can file a suit that results in a reported $10 million settlement back in 2005 long before the company was sold to Disney for $4.6 billion in 2009? Will the Supreme Court recognize the injustice of one co creator being compensated while the other is not?

Marvel, itself, has obvious doubts about the work for hire relationship it pretends to command over its creators. Lee’s  is not the only settlement they have negotiated going back as far as Joe Simon for Captain America, Steve Gerber for Howard the Duck and a growing list of creators that are settling quietly as the Marvel cinematic universe now grows into a global phenomenon.

No other creator has been signaled out and treated as significant a threat to Marvel as Jack Kirby. He alone was subjected to restrictive contracts regarding his existing work for the company. He alone was forced to sign restrictive agreements just for  the return of his own original art. If Marvel was so sure of its work for hire relationship with him why were they so contentious with him late in his career before his death? Why did they fear Jack Kirby?

The Supreme Court now has an opportunity to finally and fairly define the work for hire relationship as it pertains to the comic book industry regarding properties that were created in the Silver Age and are now becoming eligible for . Hopefully they will realize that properties that were created for meager wages at a time when comic book sales were weakened by a federal witch hunt are now worth an obscene amount of money that could have never been anticipated by the original creators.

Many of the creators who are still  alive and struggling in the twilight of their lives could benefit immensely from any fair compensation that relates to the current value of their creations. For those that have passed away, like Jack Kirby, it would be comforting to their families if their lives in today’s economy could be eased by that which they should rightly inherit.

If you enjoyed comics because you believed that the heroes fought for what was right, now is the time to hope and pray that the Supreme Court will insure that justice is served for those that created the heroes we enjoyed. Collectively support Jack Kirby’s family with well wishes and maybe a miracle will happen.

This can be a great comic book story where justice triumphs once again. If the Supreme Court decides to hear this case it is a sure bet that Marvel will beg the Kirby Estate to reach a settlement, hopefully with an agreement similar the one that Prince just received from Warner Brothers Records, where the work remains in current hands but compensation and control are renegotiated. It would be a win-win situation for all sides especially for the fans who all want this story to have a happy ending befitting of the greatest superheroes of all time. A story of epic proportions that would make both Jack Kirby and Stan Lee proud.

Making Comics Because We Want to,

Gerry Giovinco



Prince Leads the Charge for the Return of Creator’s Rights

Tuesday, May 6th, 2014

According to Billboard, recording artist Prince is ready to  party like it’s 1999 all over again because Warner Brothers Records has returned to him the power to control his music  thanks to revisions made in the Copyright Act of 1976.

The musician that defined Minneapolis sound in the late 1970′s effectively has fired the first, successful, high-profile salvo that should inspire all artists who sold rights to their works to actively pursue termination of those rights within their effective window.

Prince took advantage of a termination clause in the Copyright Act that has generally been overlooked and one that strikes fear in the hearts of big business, especially those in the entertainment world where the stakes are especially high.

How the Act defines transfers of rights is clearly described here:

“With certain exceptions, section 203 provides that transfers executed on or after January 1, 1978 may be terminated 35 years after the date of the grant. Authors must give notice of their intent to terminate not less than two or more than ten years from the intended termination date. Termination of grants made in 1978 could begin, therefore, in 2013, with notices first served in 2003.

An author has a five-year window from the end of the 35-year period of the grant in which to exercise his termination right. If he fails to do so, all the rights covered under the existing grant will continue for the term of the copyright.”

The article continues:

A second termination right, set forth in section 304, applies to transfers executed before January 1, 1978. The 1976 Copyright Act extended the copyright term for pre-1978 works by 19 years. Congress decided that the beneficiary of that 19-year extension should be the author, rather than the assignee of rights in a work.

Congress accomplished this by giving the author (or his heirs as specified in the statute) a right to terminate a pre-1978 transfer of the renewal copyright effective at any time within a five-year period commencing fifty-six years after the copyright had been secured. The author must give notice of his intent to terminate between two and ten years before the effective date of termination.

Corporations do not want to lose the rights to intellectual properties that they have heavily invested in for decades, especially ones that have made them millions of dollars in return. They are anxious to settle on terms that will will benefit both parties rather than lose a property completely.

This is how Prince was able to negotiate control over his music and the return of his masters while Warner Brother Records maintained distribution rights in a win-win situation for both parties.

Prince recognized that even as big a star as he is, he could not generate the revenue with his music that the big label was capable of. Proof of the disparity of this ability can be seen in his album sales since he rebelled as the Artist formerly known as Prince and  struck out on his own in 1991. The purple clad Artist sold 18.5 million albums in the United States according to Billboard’s Soundscan numbers. 14.3 million of which were sold by Warner who accounted for over 77% of the volume.

This is the type of profit friendly sentiment that the corporations are banking on and why we see giant companies like Marvel quietly sneaking to the settlement table to preempt any mass exodus of intellectual property before any litigation makes it to a court room.

The elephant in the room, however, is work-for-hire which designates the corporation as the author and is the key exception to any termination right. There are holes in the work for hire defense though and big companies without iron clad agreements are wary of courts that might favor the little guy.

The battle over what defines the work for hire relationship in comics has been notoriously waged by the Kirby family who, using the same termination clause as Prince, has been attempting to reclaim the late Jack Kirby’s share of key characters that he co-created with Stan Lee between 1958 and 1963. Their attempt to terminate rights which began in 2009 has yet to hurdle repeated pro work for hire rulings and is now being appealed for hearing by the Supreme Court.

Should the Kirby family win or lose, a bonanza is about to begin in the comic book industry in light of Prince’s victory. More creators and lawyers than ever are now aware that any grandfathered property created after 1960 can now be contested, opening the doors to rights termination of at least some Silver Age comic book properties.

Furthermore, any property created between 1981 and 1989 needs to be addressed quickly by creators wanting to take advantage of the current eight year window for termination requests as described earlier.

This is Alan Moore’s perfect opportunity to rescind from DC Comics and Warner Brother’s the rights to his stake in WATCHMEN!

The 1980′s was a prolific era in independent comics and a number of properties exchanged hands from creators to indy publishers some of which were later sold to Marvel and DC. Their work was expressly NOT work for hire! Now is the time for any of those creators to actively seek rights termination or at least renegotiate their terms. Remember that you can always seek council from the Comic Book Legal Defense Fund.

Creators, take a stand, get educated and reclaim your rights before it is too late. Be warned that if you miss the window that applies to your work you forfeit the right to reclaim it forever and that is exactly what the big corporations are hoping for.

Now is time for comic creators to choose wether they’d rather be a prince or a pauper.

Follow the lead of Prince who was famously and formerly known as just an artist but who is now the ultimate ruler of his creations. Get your rights back or at least make more money and you can “Party like it’s 1999″ too!

Making Comics Because We Want to,

Gerry Giovinco



‘Captain America’ Cries the Red, White and Blues

Tuesday, April 8th, 2014

Anyone out there who has remotely cared about how comic creators have been screwed out of even the tiniest morsel of the tremendous profits  generated by Hollywood’s superhero bonanza had to let out a huge guffaw after reading a recent Variety  interview with Chris Evans, who will star as Captain America throughout a contracted six film run for Marvel Entertainment. His commitment is now half completed with this past weekend’s blockbuster release of Captain America: The Winter Soldier.

The star spangled actor seems fairly constrained when talking about the trials and tribulations of portraying the famed First Avenger, careful not to raise the ire of Marvel studio execs but can’t help himself from peaking the nerves of their stingy bean counters with a little help from Avenger cast ring leader, Robert Downey, Jr.

Evans says Marvel will often send him pictures of “Captain America” action figures that are molded after his likeness, but that he doesn’t profit from the merchandising. “I see my nephew wearing underwear with my face on it,” says Evans. “I’m like ‘what’s going on?’ But for some reason, (no money comes) my way.” Adds Downey: “Nobody gets anything from the toys, and nobody ever will.” Then he promises: “I’m working on it.”

What if?

It’s a hoot seeing these mega-stars crying over the money they are not making especially after they all made such a big scene about renegotiating their contacts going into Avengers 2 after the original Avengers film grossed over $1.5 billion world-wide, ranking it number three in all-time box office sales. Adding fuel to the fire was the huge discrepancy of pay between stars. Downey made $50 million for his role as Iron Man while other Avengers  made as little as $200,000 for their silver-screen super-heroics generating comments like, “On what planet is that fair!”

True to form, Marvel continues to “strong-arm and bully” the talent, wether it is an aging comic book creator or a celebrated Hollywood actor, with threats of law suits and dismissal of service held against detractors. Marvel considers talent to be expendable so long as they control the Intellectual Property of their vast library which they protect with the might of Odin to the point that even Disney power suits stand clear.

As each new Marvel film exceeds expectations and rings up record revenue it becomes more apparent that Marvel is as mythic as its heroes and villains when it comes to sheer greed. Soon their brand will be synonymous with companies like Walmart and McDonalds whose employees require government assistance to survive because they are paid and treated so poorly.

Maybe the high profile whining of celebrities like Chris Evans, Robert Downey, Jr, Scarlet Johansson, Chris Hemsworth and others will bring attention to Marvel’s unscrupulously tight fisted business ethics. Maybe the stars and the public will finally gain sympathy for the Kirby family who do not see one red cent from all of the characters that Jack Kirby co-created, without which none of these actors would have a role to play or complain about in the first place.

Unions in Hollywood are powerful, they have the ability to freeze the industry. Should the writers and actors become sympathetic to the plight of comic creators and their heirs, some justice could still come to those that have been denied fair compensation for their contribution to both the Marvel and DC Universes for decades. Maybe the courts will finally recognize the injustices that they’ve been catering to as they suckled the teats of big business.

Let’s root for the Marvel films to be so successful that  the stars can’t stand watching the vast amounts of money that is sure to elude them. Put them in the shoes of Jack Kirby, Joe Simon, Steve Ditko, Jerry Siegle, Joe Shuster and a long parade of other comic creators that worked for a lousy page rate under the shackles of a work-for-hire agreement and never saw royalties when their creations became films, toys or underwear.

The stars representing beloved heroes will put an unmistakable face on the unfair practices of Marvel and DC that a comic creator hunched over a drawing board or typewriter never could. Maybe then the world will appreciate the injustices that many of us have known about for decades and some things will change in the comics industry.

A perturbed Chris Evans is a great start. His character, Captain America, represents the American Dream and has stood for all that is fair and good in this country since his creation by Jack Kirby and Joe Simon in 1941.

It is only right that Captain America should now lead this charge against the corporate greed and bullying that grips our nation, exemplified by Marvel, the self proclaimed builders of our modern mythology. There is more than a man behind that shield he carries, there is the heart of a nation that cannot be taken away. It is time we all stand behind that red, white and blue shield together to defend what we know  is morally right. It is time for a battle cry! America, Assemble!

Gerry Giovinco



‘Marvel Studios: Assembling A Universe’ – A Kit With Instructions

Tuesday, March 18th, 2014

Tonight ABC television airs a special, ‘Marvel Studios: Assembling A Universe’ that is being promoted as an exclusive look inside the world of Marvel Studios.

Marvel’s website succinctly describes the world premiere primetime event:

“Marvel Studios has pioneered and broken box-office records around the world, creating a cinematic universe unlike any other in pop culture history through its blockbuster films. Beginning with “Iron Man” in 2008 and continuing today through “Marvel’s Agents of S.H.I.E.L.D.” on ABC and the theatrical release of “Captain America: The Winter Soldier” this April, the Marvel Cinematic Universe presents audiences with some of the most groundbreaking and dynamic storytelling that brings an unprecedented vision to the world of entertainment.

In this exclusive primetime documentary special, audiences will be taken further into the Marvel Cinematic Universe than ever before, offering viewers a front row seat to the inception of Marvel Studios, the record-breaking films, the cultural phenomenon, and further expansion of the universe by Marvel Television.

Marvel’s first television special documents the exciting story behind Marvel Studios and the Marvel Cinematic Universe, featuring exclusive interviews and behind-the-scenes footage from all of the Marvel films, the Marvel One-Shots and “Marvel’s Agents of S.H.I.E.L.D.” Viewers will walk a clear path through this amazing and nuanced universe, featuring sneak peeks at the future of “Marvel’s Agents of S.H.I.E.L.D.” on ABC, new footage from Marvel Studios’ upcoming theatrical releases, “Captain America: The Winter Solider” and “Guardians of The Galaxy,” and a sneak peek at the upcoming Marvel’s “The Avengers: Age of Ultron.’”

Curiously, they never mention the words “comics” or “comic books” once in their own promotion of this marketing extravaganza.

Seriously?

Fortunately early clips from the documentary shown on other sites quote Marvel Comics’ Editor-In-Chief, Axel Alonso saying,

“What Marvel Studios has done is very similar to what Marvel Comics did back in the day. They’ve built individual stories to stand on their own two feet, then they found a way to take those stories and weave them into a larger narrative.”

Thank you… I think.

Marvel Studios needs to pinch themselves, wake up and come to the stark (pun intended) realization that they are not creating anything. They are ADAPTING!

They are assembling this cinematic universe of theirs from a kit whose instructions were clearly established over a 73 year history by a ton of creative individuals whose professional careers were dedicated to making comic books!

Forget IRON MAN in 2008, let’s start with CAPTAIN AMERICA in 1941 and see where the Marvel Universe would be without their First Avenger that was created by Joe Simon and Jack Kirby.

That’s right, the same Jack Kirby whose name pops up when you also mention the creation of, Iron Man, Hulk, Thor, Avengers and Agents of S.H.I.E.L.D. all of which  he collaborated on with some guy named Stan Lee throughout the 1960′s.

Stan Lee? Yeah, he was Editor-in-Cheif back in the day” and was probably the guy most responsible for finding a way to weave those stories into a “larger narrative” since he was sitting behind the big desk at the time, directing traffic and providing the final scripting on all of those comics.

Let’s not even get started on the Guardians of the Galaxy whose long list of creator contributors include the names of folks like Arnold Drake, Gene Colan, Steve Englehart, Steve Gan,  Bill Mantlo and Keith Giffen just to name a few.

By the way, there is one Guardian that has been lurking around the Marvel Universe since 1960. Yup! Groot made his first appearance in TALES TO ASTONISH #13 and is credited to – guess who? Stan Lee, and Jack Kirby along with a fella named Dick Ayers who also contributed to the creation of Iron Man.

Don’t be surprised if that alien shown in the T.A.H.I.T.I. episode of Agents of S.H.I.E.L.D. turns out to be Groot regenerating in that giant test tube. He is, after all, an alien plant species that was once held captive by S.H.I.E.L.D., became member of Nick Fury’s Howling Commandos and was later selected by the Kree to join the Guardians of the Galaxy to battle Ultron and the Phalanx where he sacrificed his life only to be brought back from the dead by Rocket Raccoon who managed to regrow him  by planting  one of his branches.

Nah!  That shit only happens in comic books.

Marvel Studios is working with a gold mine of material even after licensing out huge properties like Spider-man, X-Men and The Fantastic Four. Thanks to work-for-hire conditions in the comics industry the bulk of that material was produced for a  mere page rate and most of those creators that originally built that universe will never see a thin dime in royalties delivered to them or their heirs, especially not those of the late Jack Kirby whose creative genius is associated with most of this current crop of film and television that the Marvel Universe is built on.

Maybe, like Groot, there is hope that a seed, a branch or a twig could be planted and justice could grow from a bad deal that has been declared dead.

Remember, that without those comic books, none of these films and television shows will have ever existed and neither will have all the industry that is built around licensing and merchandising them, creating tons jobs that help support our economy.

What entertainment would we be enjoying this summer without Joe Simon, Jack Kirby, Stan Lee and the rest of those comic book creators?

Without them there is no Marvel Universe to assemble.

Making Comics Because We Want to,

Gerry Giovinco



Joe Simon Deserves More Than a Concession

Tuesday, March 11th, 2014

Marvel superheroes are anticipating a big summer on the silver screen with four blockbusters waiting in the wings. Captain America, Spider-Man, X-Men and The Guardians of the Galaxy are all ready to prove that their real superpowers are their ability to generate billions of dollars worldwide from ticket sales and merchandising.

With all that cash soon to be whirling around, It was a wonderful feeling to discover from  Bill Mantlo’s brother Mike, that Marvel had come to an agreement that would compensate Bill fairly for his part in co-creating Rocket Raccoon, the expected breakout star of the Guardians of the Galaxy film due in August. It is a bitter sweet victory since Bill now resides in a nursing home a victim of permanent brain damage sustained by a terrible accident in 1992.

Marvel’s settlement with Bill Mantlo, though undisclosed, appears to be one that is quite satisfactory to his family and is indicative of other agreements that seem to be quietly negotiated with other creators whose characters were created as work-for hire and are now being featured in this wave of popular films. Creators appear to be receiving some type of small ongoing royalties from profits generated by their work.

For those of us that grew up worshiping Marvel and the creators that brought so much excitement into our lives,  it is a dream come true to see Marvel attempting to treat the creators fairly and compensate them for their contribution.

Unfortunately the realization of this dream is just a mirage.

In less than a month Captain America: The Winter Soldier will burst into theaters and the granddaughter of Cap’s co-creator, Joe Simon, celebrated it’s impending release with a lovely tribute intended to remember her grandfather’s most significant contribution to the world of comics.

Megan Margulies http://meganmargulies.com/ writes about how her grandfather, who passed away in 2011 shortly after Captain America the First Avenger was released, was always so proud of his creation. She subtly points out that he had reached a settlement with Marvel in 2003 that relinquished all of his rights to the character for a an amount of money so small it left the most meaningful part of the agreement being that his name and the name of co-creator Jack Kirby was required to be displayed during the opening credits of any Captain America movie.

She describes seeing his credit on the film as a great source of pride for her and Joe’s extended family as they all represented him at the LA premier of the film.

As much as anyone can appreciate being recognized for our accomplishments we all know that pride is wonderful but, at the end of the day, that and a cup of coffee ain’t getting anyone anywhere.

Dig a little deeper and read Megan’s 2013 Fourth of July tribute to her grandfather and you realize that, in her own poetic way, she wants the world to know that this man that co-created one of the greatest superheroes of all time lived a very modest life until his death at 98.

He lived in a small messy apartment that he shared with mice and a squeaky armchair. His most prominent piece of furniture was his ink splattered drawing board. The family found it necessary to sell off most of his art, a piece of which her fiancé bought for her from auction in remembrance of her grandfather.

This humble and loved man was proud of his creation but he and his family never had and never will benefit from the incredible wealth that Captain America is able to generate.

So, in my opinion, Megan’s tribute reads like an eloquent concession speech given by someone who has lost a great battle.  She took the high road and showed tremendous sportsmanship, choosing to focus on Joe Simon’s legacy rather than the ugly details.

Megan has taken the same road as the Kirby family who have finally lost a bitter war with Marvel over their father’s stake in not just Captain America but many of the characters in the Marvel Universe.

The Kirby’s, in defeat, have similarly focused on preserving Jack’s legacy by actively promoting a positive image of his contribution to comics, and managing a wonderful Kirby4Heroes campaign to aid the Hero Initiative.

It fascinates me that Marvel can pick and choose those that they are willing to compensate in an effort to manipulate public opinion while those that have been most responsible for their vast wealth are perpetually denied.

To me, it is a crime to march a creator’s family on to a stage to promote a film whose movie premier alone probably cost more than the settlement that Joe Simon received.  It is a travesty that the actors portraying the characters make more for one film than Joe Simon and Jack Kirby made in their lifetimes. It’s a shame that the profits generated from these films could support a small country yet the heirs of these creators find themselves selling prints on etsy, surely not for the fun of it.

CigarJoeDesigns

it is a huge mistake to read Megan Margulies tribute to her grandfather and get so overwhelmed by the tremendous respect and pride that she has for what Joe Simon accomplished that we fail to remember that he and his family are victims of an unscrupulous corporation that will deny fair and reasonable compensation to the families of their greatest creators.

Marvel, you had us going there for a second, but compensating creators needs to be more than a PR stunt. Make it a retroactive and significant part of your corporate strategy and then we will all be impressed. Until then, enjoy watching creators die in poverty while your execs and shareholders get fat at their expense.

Making Comics Because We Want to,

Gerry Giovinco



The Alternate Reality of Dark Horse Comics

Tuesday, February 25th, 2014

Mike Richardson, the publisher of Dark Horse Comics made it very clear that winners do attempt to rewrite the history books, creating an alternate reality that would make any comic universe proud when he made this statement:

“I don’t know if anyone understands today that we spearheaded the creator-owned movement. Image was years away, and any kind of company that offered those rights and those freedoms hadn’t happened yet. We spearheaded that, and I think that fact has been lost over the years.”

Mike Richardson

People that know anything about creator owned comics and especially those that actually care about creator owned comics definitely do NOT understand the point that Mr. Richardson is attempting to make because it is a complete fantasy with no basis in historic reality, whatsoever.

Dark Horse does not even have the longest history of publishing creator owned works of current comics publishing companies. Hell, even Marvel and DC were writing creator owned contracts and offering royalties to creators before Dark Horse even opened its doors! The Big Two had to in response to a gang of Independent publishers that were successfully producing creator owned comics that posed a significant threat to their market share while siphoning away top talent.

Creator ownership is a simple concept. You create it, you own it and that is how copyright law works. Since 1976 the creator owns the work from the instant it is created wether it is filed and registered or not. This excludes, however anything created work for hire in which case it belongs to the company that commissioned the work on their behalf. If you open a comic book or any other work and it says “© Joe/Jane Creator” it is creator owned.

What you do with your creation after you create it is a different story. In the comics industry it was common practice for a creator to sell the entire rights of their creation to a publishing house. This was usually done in the hopes of getting steady work and in the case of some of the more savvy creators a small stake in royalties. Siegel and Shuster sold the rights to Superman for $130 while Bob Kane, reportedly, always held some small stake in Batman.

This practice of buying properties outright was unlike typical book publishing where authors retained their copyright and were paid an advance by publishers for the rights to publish their work then paid royalties on each book sold. This publisher/creator  relationship would endure for a specified term outlined in an agreement which would also include termination clauses and opportunities for revision of rights to the creator.

So this concept of creator ownership has never been anything new, it was just outside of the business tradition that had been established by comic companies who argued that the low price of comic books made them such a low yield product royalties would be negligible.

A quick history lesson for Mr. Richardson since he obviously missed it:

It was the Underground Comix movement in the ’60s and ’70′s that proved that creators could self publish and develop markets to sell their material in. If anybody spearheaded creator owned comics it was this group.

Just a few Creator Owned comics published before Dark Horse existed

When the Direct Market was created by Phil Seuling in 1972 he created a distribution system that was user friendly for creator owned comics. Bud Plant’s Comics & Comix published some early creator owned comics like The First Kingdom by Jack Katz which began in 1974 the same year that Mike Friedrich began publishing Star*Reach. Mike was a huge advocate of creator ownership and represented a number of great comic talents as their agent. By 1977 Heavy Metal hit the racks with creator owned material while Aardvark Vanaheim and WaRP Graphics were self publishing Cerebus and Elfquest respectively. Dean Mullaney formed Eclipse in 1978 and we witnessed the first defectors from Marvel when Don McGregor and Paul Gulacy create Sabre which was also one of the first graphic novels.

Just a few publishers of Creator Owned Comics

The floodgates opened in the 1980′s and a strong wave of publishers all with creator owned contracts poured on the scene, Pacific, First, Comico, Capital, Aircel, Vortex, Fantagraphics, Continuity, Mirage and others all produced creator owned projects well before Dark Horse showed up.

These publishers refined the model that Dark Horse adopted. ADOPTED! Dark Horse may have spearheaded survival in the volatile comics market that sank most of those early publishers by the middle of the ’90s but they certainly did not spearhead the concept of creator ownership.

Each of the publishers had their own way of exploring the terms of the contract with creators. I can only speak for what we did at Comico and we were always proud of how creator friendly and generous our contracts were. Comico paid full page rates that were comparable to those paid by Marvel and DC. In those days that averaged about $200 a page for writing, pencils, inks, lettering and coloring. We paid royalties after each issue broke even which was roughly after 30,000 were sold at which point we split the net 50/50! In those days it was not uncommon for an issue to sell between 60,000-100,000 copies so creators did quite well and they completely owned their property.

I have always been impressed with Dark Horse. They became the company that Comico was always intended to be. Comico discovered new talent,  worked with established pros,  had success with licensed properties and was highly innovative and focused on quality, but  unfortunately made mistakes that led to the company’s failure. When I look at the success of Dark Horse I see confirmation that Comico had many of the right ideas as did most of those early independents that made for one of the most exciting eras of comics history.

It is an insult to see those accomplishments dismissed by a respected guy like Mike Richardson who obviously did his homework but rather than give credit where it is due, chooses to rewrite history to benefit his latest marketing plan.

He is not alone, Image shares the same glory complex, as if they were the first Independents, the first pros to walk away from Marvel and DC but they never would have had the chance if it were not for a host of others that did it over a decade earlier and built a viable market for them to succeed in.

Acknowledging history goes a long way towards gaining the respect you desire. Why waste energy and goodwill fabricating history when you should be focused on making and celebrating your own.

Out of respect I did leave a voicemail for Mike Richardson with his administrative assistant, hoping to get a better insight to why he believes his position but as of this writing the call has not been returned. I guess it got lost in the alternate reality of Dark Horse Comics where the accomplishments of true pioneers no longer exist.

Making Comics Because We Want to,

Gerry Giovinco



Worlds Apart – Stan Lee and Alan Moore

Tuesday, February 4th, 2014

A recent review by Bob Duggan of Clifford Meth’s Comic Book Babylon led off with the title The Real Heroes and Villains in Comic Books. It featured spot illos of a typically exuberant Stan Lee and brooding Alan Moore beautifully rendered by Michael Netzer.

The arrangement of the portraits beneath the title insinuates, at first glance, that Smilin’ Stan, with Spidey dangling in the background, represents the heroes and Scowlin’ Alan embraces the villainous dark side.

According to Duggan’s review, however, both Lee and Moore are described by Meth as victims that belong to a long list of creators that have been taken advantage of by the corporate comic book giants, Marvel and DC.

It is a huge stretch from most perspectives to imagine Stan Lee as a victim of the comics industry while Alan Moore could easily be anointed the poster child for the royal reaming that begets comic creators. This contrast added greatly to the irony of the header of the post and was a wonderfully divisive way to catch the attention of readers, especially those sympathetic and knowledgeable about creators rights issues.

Yet, Stan Lee and Alan Moore are a perfect choice to if not solely for their contributions as the most influential writers of superheroes in the industry outside of Superman co-creator Jerry Siegel. Where the creation of entire genre of Superhero comics rests on Siegel’s shoulders, Lee and Moore’s influence anchor pivotal changes in how superheroes were portrayed that redirected the entire industry at different points in its history.

Despite their similar accomplishments both men also took decidedly different roads regarding their creative achievements and celebrity. In many ways the two men are worlds apart from each other.

Jack Kirby & Steve Ditko

There is a strong argument as to how much creative responsibility Stan Lee had in regards to the creation of most of the Marvel Universe during its heyday in the early 1960′s. Lee himself readily admits the roles that Jack Kirby and Steve Ditko had in fostering the creation of Marvel’s most iconic characters that are now worth billions of dollars. But Stan is and always has been a company man and has held fast to the work-for-hire relationship that denies creators and their heirs, especially those of Kirby and Ditko from any royalties.

To his credit, however, Stan bucked the system by developing and marketing one character that no one could take away from him. He recreated himself. With the impending success of the new Marvel line of comics Stan quickly transformed from your typical clean cut, white collared middle aged editor with thinning hair to a flashy guy with a mustache, sideburns, toupee, shades and a polyester wardrobe indicating that his new image consultant was probably the young and attractive Flo Steinberg, Marvel’s own Gal Friday. He certainly wasn’t getting fashion tips from Sol Brodsky.

While he was busy scripting snappy dialog full of trendy colloquialisms that endeared Marvel characters to a hipper, slightly more mature audience and redefining the genre he was sure to build his own celebrity with his new look, lecturing at colleges, doing voice overs on cartoons, writing Marvel Origin books, and plastering his name on every Marvel comic that opened with “Stan Lee Presents.” Stan’s monthly Soapbox was exactly that, not just a tool to promote Marvel Comics but a forum to promote Stan the Man and was where his now famous slogan “Excelsior!” first buried deep into the souls of his fans.

Today at 91 years of age, Stan is as vibrant and famous as ever. He has managed guest appearances in nearly every Marvel blockbuster an tonight will appear on Marvel’s Agents of S.H.E.I.L.D.. He is worth over two hundred million dollars and in large part due to his own success at making his name synonymous with Marvel rather than royalties received from  each character he co-created.

Stan has done what he does best. He took care of himself and worked hard at it and though he has always been incredibly diplomatic, he has never stepped away from company lines regarding creators challenging the work for hire agreement. He never used his celebrity or leverage of any significance to correct or influence the draconian practices of the industry.

Alan Moore opened the doors for superheroes to engage a more mature audience. His work filled with complex themes and refined writing that raised comics to a level  recognized as literature. A true artist, his preference was to have his work speak for itself. Respect the work and you respect Alan Moore. Simple as that.

In the 1980′s when Moore’s work rose to critical acclaim and redefined the medium there was no question that he was the new Golden Boy. His trademark long hair and looming bearded persona always projected an image of the quintessential artist. His work has always spoke for itself and he is regarded by most as the greatest graphic novel writer.

For this reason alone it was with great celebration that DC penned a “creator owned” deal with him and Brian Bolland for Watchmen. A deal that would be manipulated and bastardized for decades to follow, culminating in a Watchman film that disregarded his lack of approval and the insult of a prequel series of comics titled Before Watchmen that mocked his authorship of the  greatest selling graphic novel of all time.

Moore has had a tempestuous relationship with publishers throughout his career that has led many to point fingers at him as the common denominator and has driven him into a personal exile from most comics and fandom.

Alan Moore, is a man who is more concerned about respect for his work than he is about money and has, as in the case of Watchmen, declined receipt payment as a matter of principle to protest his dissatisfaction. Few can understand how anyone could be so idealistic to reject the kind of money he has turned away, thus fueling the impression that he is an irrational man which he is anything but.

Moore, lately, has a new take on superheroes calling them a cultural catastrophe.’ The man that elevated the horizon for an entire medium is now denouncing the genre that he is responsible for transitioning. He is now receding from public life to work uninteruppted. In his wake is an entire generation of creators that are watching their greatest influence turn his back and walk away from them.

Alan Moore has been a high profile victim but he has often been in a position to capitalize tremendously despite his abuse. He has chosen retreat and rejection of compensation as his defense where he could have redirected that “tainted” money toward a fund to champion creators rights that seem dear to him, personally, yet he chose not to.

Stan Lee and Alan Moore both had the amazing ability to change the course of an entire genre. Their lofty positions gave them both an opportunity to make a difference regarding the rights of creators and neither took up the mantle. In Clifford Meth’s book, apparently they are both portrayed as victims of sorts, clearly Moore has received the shorter stick, but neither are in a position to cry poverty like so many others.

These are two men that made a career out of defining heroes but never found the hero in themselves.

This issue of creators rights is an important one in the comic book industry and should never be taken lightly by any fan or professional. Any book like Comic Book Babylon is a must read and Meth should be applauded for its compilation as well as his personal efforts in defense of the late Dave Cockrum.

In the end, this is a story about David and Goliath both with an opportunity to make a difference. As usual it is the Davids of the world like Clifford Meth that stand up and fight while the Goliaths like Lee and Moore draw all the attention but, in the end, are ineffectual when it matters most. Worlds apart in more ways than one.

Making Comics Because We Want to,

Gerry Giovinco



Hollywood Hell

Tuesday, January 21st, 2014

It is Oscar Season in Hollywood. Congratulations in advance to all the losers! I’m not talking about all those folks that were lucky enough or talented enough to be nominated but those that will never even be invited to ceremonies or get a sniff of the knobby trophy.

I’m talking about all of the dedicated artists without which most of the films we see would never be made. The men and women that create, design, animate, sculpt,  draw and paint relentlessly to produce a reality in two and three dimensions that ultimately comes alive on film. The people that make a measly paycheck compared to the actors, directors, and producers that rake in millions. The saps whose microscopic credit flies by on the screen so fast it is nothing but a blur.

Congratulations to you all and thank you for another incredible year of cinema that would have been shit without you!

Sounds rough, I know, but any one who describes themselves as an artist of any sort knows that they, with few exceptions, wear a permanent “Kick Me” sign especially when it comes time to being valued and paid for their work. This is not just in Hollywood but in all creative fields including comic books.

These days, comic books and Hollywood work in tandem to create incredible films and, for the most part, it is the people that created the comics in the first place that see the least revenue from the giant blockbusters they inspire.

To be sure there is a line of creators seeking compensation for their contributions outside the Marvel/Disney and DC/Warner Bros. offices. In many cases settlements are made secretly, behind closed doors, in an attempt to shore up any floodgates ready to burst.

These agreements are band aids on a wound that never heals because though it may satisfy the immediate creator in question it casts an illusion of harmony that deludes other creators into a false sense of security in their professional dealings, giving the corporate gatekeepers the upper hand.

It is this overwhelming attitude that disregards the value of creators that makes them vulnerable to predators in the industry and in society itself.

This is why people  like Shia LaBeof feels it is his it is his right to plagiarize source material at will and mock the convention of copyright ownership. Comic artist Dan Clowes is a victim whose work and career has been violated, yet it is Labeouf that is defensive like a rapist dismissing an accuser.

It is this creative disregard that allows artists at the top of the food chain, like Spike Lee, to scoff at designer Juan Luis Garcia and respond with malice when Garcia sought to be paid for work that had been stolen from him by an unscrupulous ad agency hired by the filmmaker.

Juan Luis Garcia has disappeared, a mere hiccup to a respected independent filmmaker that had an opportunity to publicly respect the value of the work of another artist that was just trying to make a living. Spike Lee chose to bury him instead, more concerned with protecting his own bottom line than the integrity of the arts.

It is this pervasive sentiment that opens the Kirby heirs to criticism for seeking compensation for their father’s contribution in creating the multibillion dollar Marvel Universe.

The professional hell that artists experience everyday may not always compare to the injustices in Hollywood but it is prevalent every time someone asks that work be done for free or well below market value because it will “offer exposure” instead, every time time an artist is asked to do work on speculation, never to be paid, and every time they do work-for-hire and see no residuals from an unexpected success.

The world is a difficult place for any profession these days. Everyone from the plumber to the baker is struggling to make ends meet while the moguls at the top get rich off of their hard work. Artists are often dismissed because at least they have the joy of “doing what they love.” That is no excuse for fair compensation for the work that they do.

Next time you watch a film pumped out by Hollywood, take the time to sit through the credits and absorb the enormous amount of people that it took to make that single movie. Imagine how many of them are artists with great aspirations and who are now wondering where their next paycheck is coming from. Learn to appreciate and value their work and creativity because these are the folks in the trenches of Hollywood Hell and the film you enjoyed would not exist without them.

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




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