© ????- (ok… © Marvel Comics until further notice)

Marvel Comic’s superheroes are famous for being different than the typical type because they are written as having to deal with personal and human issues and problems as often as they do the superhuman kind.

Apparently Marvel itself is no different.

A legal battle is shaping up pitting Marvel Comics and its new parent the Walt Disney Company against the heirs of legendary comic book artist Jack Kirby, who are arguing that a portion of the copyrights to many of Marvel’s most marketable characters belong to their late father and his estate. This is similar in some respects to the recent lawsuit between the heirs of Jerry Siegel and DC Comics/Warner Bros. In fact, the same lawyer in that case is representing the Kirby family.

No doubt this legal process will take many years to clear up once all appeals and such are exhausted. It does have some far reaching copyright implications, though. There are a lot of complexities and angles to argue, but essentially I think it all boils down to one thing… did Marvel observe the legal niceties way back in the 60′s when that kind of thing was sometimes an afterthought and was all the work Kirby did legally work-for-hire? If Marvel has signed agreements from Kirby covering all the work he did for them, then they have a strong legal position even if Kirby did the work from his home using materials he provided. If they can’t produce those signed agreements… then that is another story. This could end up having a bearing on the rights of many golden and silver age artists and the rights they relinquished on characters that are being mined as brands today.

Kirby had a significant hand in co-creating most of Marvel’s most popular and most marketable characters. With big money films having been produced and on the horizon, and all the marketing, toys and tie-ins associated with them, there is big, big money at stake. This should be a long and interesting story.

This just in from the Illustrator’s Partnership:

FROM THE ILLUSTRATORS’ PARTNERSHIP

White House Seeks Artists’ Comments to Improve Copyright Protection

3.18.10

New Copyright Czar begins Joint Strategic Plan to Protect Intellectual Property

Victoria Espinel is the first U.S. Intellectual Property Enforcement Coordinator (IPEC), also known as the Copyright Czar. Congress created IPEC by an Act of Congress. Ms. Espinel serves within the Executive Office of the President to coordinate with all the federal agencies that fight the infringement of intellectual property.

Ms. Espinel and her team are specifically tasked with formulating and implementing a Joint Strategic Plan to help protect the ingenuity and creativity of Americans by improving the U.S. Government’s protection of the rights of intellectual property owners.

Your input is requested.

The White House is inviting your public input and participation to shape an effective intellectual property enforcement strategy. Please respond with your written submissions regarding the costs to you, your business and the U.S. economy resulting from infringement of your intellectual property rights, both direct and indirect.

This will be a 2-part process. The first is to gather public recommendations by March 24. IPEC will then gather your input on the formulated plan.

Please be precise. Include your name, city, state, and what type of artist you are. Explain why copyright is critical to you as a commercial artist, how infringement affects you, and what the U.S. government can do to better protect the rights of American artists. If your submission is about your economic loss due to infringement of your copyrights you must clearly identify the methodology used to calculate your losses or otherwise validate your infringement and enforcement costs.

Your submission will be publicly posted. For this reason, please do not include in your comments information of a confidential nature, such as sensitive personal information or proprietary information.

Confidential disclosures- If you have confidential business information that would support your recommendation or that you believe would help the Government formulate an effective enforcement strategy, please let them know by contacting:

Thomas L. Stoll
Office of the Intellectual Property Enforcement Coordinator
(202) 395-1808

Deadline: Submissions must be received by Wednesday, March 24, 2010, at 5 p.m. EST.
Address: All submissions should be sent electronically via intellectualproperty@omb.eop.gov

Additional Background Reading:
White House Blog
Federal Register Notice Request

- Brad Holland and Cynthia Turner for the Board of the Illustrators’ Partnership

Yikes, that deadline is this coming Wednesday. The gist of this message is here is a chance to get your voice heard over how copyright infringement can damage your ability to earn a living as a creator of intellectual property, and the concerns you have. Considering the shady and misguided Orphan Works legislation some members of congress have been trying to sneak through the last few years, this is a chance to get the concerns of artists, writers and other creators out to people who might listen.

Well, not literally…. although with the spring we’ve had in Minnesota I wouldn’t bet against snow in June. I mean snowed under with jobs right now. I finished my MAD job but have two other major projects that are coming due right now so this week and next are going to be a continuation of the same old story.

I wanted to post my thoughts on the season finale of LOST, which I finally got to watch last night… but I really cannot justify that time right now. I just couldn’t bring myself to post the Dreaded Deadline Demon again today, so instead here is are a few links to some articles of interest:

Even More Will Elder-

This is one of the best Will Elder tributes I’ve read on the internet.

Chinese Copyright Infringement Book Debacle-

Here is an example of the power of the internet at work.

Illustrator Luc Latulippe and the folks at the Little Chimp Society discovered a few weeks ago that a Chinese publisher stole content off the LCS website, namely interviews with artists including Latulippe and the artwork included, and published it translated in book format selling for $100. No kidding… a full book of “scraped” content complete with their illustrations. You can read the story about it here and here.

Of course there is little legal recourse here. I doubt China, that bastion of the upholding of human rights, is even part of the Berne convention of international copyright law… but even if they are this publisher used fake contact info and a fake ISBN, so finding them at all is going to be tough, let alone getting them into a court somewhere. Basically there are some places on the planet where you can do nothing about someone stealing your work… I’ve run across my artwork produced on postage stamps from South American and former USSR republics before and have basically no legal recourse.

Contacting the distributors and sellers of the book also yielded no results, as they refused to stop selling it.

Well, Latulippe decided not to take this lying down, so he called for a grass roots “spread the word” campaign to let people know what this was about and hopefully damage the reputations of the parties involved or at least cause a few less sales for them. The good news is that it has yielded some results. At least one of the resellers, Index Books, has agreed to stop selling it and has sent the remaining copies back to the distributor. Hopefully more of such action will follow.

So, here is my contribution to the cause in the form of links to increase their search engine ranking. Good luck guys, and keep fighting the good fight.

Thanks to Cedric Honstadt for the heads up.

I’ve written a lot about the latest incarnation of the misguided Orphan Works Act, so rather than rehash any of it I’ll just point to this post for the facts and serious issues the bill raises to creative professionals. Briefly, my stand on the bill is that it has serious implications for those who make a living creating new creative works for publication and commercial use, and that the supposed purpose of the bill (to preserve work that is truly “orphaned” so it is not lost in time) would be better served with new definitions and laws for “fair use” of a copyrighted work.

I was talking with illustrator great C.F. Payne about the bill the other day, and he brought up another problem with the bill I had not considered. Chris is a tireless advocate for professional illustrators and their rights, and he knows of what he speaks. He mentioned a potential serious issue wherein an artist may find himself being sued for “infringing: on his own artwork! H.R. 5889 contains the following clause concerning “derivative works”:

”(f) COPYRIGHT FOR DERIVATIVE WORKS AND COMPILATIONS.—Notwithstanding section 103(a), an infringer who qualifies for the limitation on remedies afforded by this section with respect to the use of a copyrighted work shall not be denied copyright protection in a compilation or derivative work on the basis that such compilation or derivative work employs preexisting material that has been used unlawfully under this section.”.

What this means: Anyone who goes through the process of declaring a work “orphaned” (i.e. they could not find the author via a “reasonably diligent search”) can then use the artwork as a basis for a “new work” known as a derivative work. They can then copyright the new work and sell it to whomever they like. Even IF the artist comes forward and says they were the original creators of the work the new work was derived from, they are powerless to dissolve the copyright of the derivative work’s creator.

Here’s a scenario: An unscrupulous stock art company employs a dozen researchers who scour old magazines, publications and the internet looking for work without immediate identification. They go through the process of finding it “orphaned” (a process that is still vague and ambiguous). They then hire a group of artists to create derivative works in the same style, changing it just enough to be legally called “derivative” (only 10% according to precedent). Now they copyright it and have a large body of stock illustration that they sell to publishers at cheap prices, damaging creator’s livelihoods and dampening the creation of new works. Under this scenario, I could sell someone the rights to use my caricature of Snoop Dogg for an article and find myself at the wrong end of a lawsuit by a stock house claiming I infringed on their copyright, as they have a rip off version of that same caricature done by a copycat artist and copyrighted in their stock art collection. As long as they could show they performed the steps to find that caricature orphaned, I can do nothing under the language of this bill even if it’s proven it was my work used as the basis of their derivative. I can open up a magazine at any time to see that rip off of my caricature staring back at me and can do nothing about it.

The bills are now introduced and will be a part of the legislative session. Below is a link to take easy action to let your US congress representatives and senators know you oppose the bills and raise the concerns needed. I’m not a big fan of form letter communication, but if you don’t have the time or inclination to write an actual letter to your elected officials, then this is better than nothing.

This link will take you to a selection of form letters from which you can choose. By entering your address it will be forwarded automatically to the appropriate congressional and senate representatives. Do so today and add your voice to those who are justifiably concerned about this serious issue.

FUD (Fear, Uncertainty, and Doubt) is the term for any strategy intended to make a company’s customers insecure about future product plans with the purpose of discouraging them from adopting competitors’ products. FUD is also an internet term for rumors or emotional responses to issues that are passed off as facts.

In the last week or so the term “FUD” has been bandied about over the reactions to the proposed and recently released Orphan Works Act of 2008, with many people accusing folks like me of emotional reactions to imaginary issues. While some of that has been going on, there is plenty about the actual bills, now in final form and available for study, to be deeply concerned about. That said, I’m afraid I’m a little guilty of spreading some FUD about the Orphan Works Act of 2008, albeit not on purpose. I relied on the information others were sharing, and I have found some of that to be misinterpreted and some flat out erroneous.

I downloaded and throughly read the bill(s), and while I do not think they are a very good solution to the “problem” of orphaned works, it is not exactly the orge that many people have been saying it is. I’ve been vocal in my opposition to the acts mostly based on information I’ve read from others. I am still opposed to the bills in their current form as I think they are too ambiguous and will still do some damage to professional illustrators and other creative professionals. However there are some attempts to prevent that damage… they just do not do the job.

Here are the facts on H.R. 5889 The Orphan Works Act of 2008 and S 2913 The Shawn Bentley Orphan Works Act of 2008, the house and senate versions of the bill respectively… what they try do and what they one can reasonably expect them to do: (more…)

EDIT- Having read the actual bills on release, I have a number of corrections and futher information in accordance to the actual bill’s language and content. I’d recommend reading this more recent blog post to separate the facts from the FUD.

Tuesday the Illustrator’s Partnership received draft copies of the 2008 version of the Orphan Works bill I’ve discussed so often here. The bill itself was released yesterday. I’ve read and blogged a lot about this issue. Here’s a link to the articles I’ve done on this horrifically misguided piece of legislation.

A week or two ago I found this sarcastic but reasonably well written and equally misguided “Six Misconceptions about Orphaned Works” post that tries to debunk the proposed Orphan Works legislation as not being the monstrosity creators think it is. The author is incredibly naive in that she believes the Orphan Works bill won’t change US Copyrights in a fundamental way, and she cites current copyright law in her debunking attempts when those laws will no longer apply in several real ways if the Orphan Works bill becomes law. She sees it as a way to be able to archive and possibly preserve works that would otherwise be lost in time because they are truly “orphaned”, like Grandma’s family photos. That is of course one of the simple reasons behind the legislation, but nothing is simple and this proposed law is like giving someone the right to scratch an itch they have but they need to use a sledgehammer to do it.

Let’s debunk her “misconceptions”. Please note I did not copy her entire text here, so please visit the original post for the entirety of her arguments. By the way, in this context my use of her copyrighted text is considered “fair use”:

Myth #1: “There’s legislation before Congress right now that will enact major changes in US copyright law regarding orphaned works! We have to act immediately!”

She says: Actually, no, there isn’t. There may very well be a bill introduced this legislative session, but no such bill has surfaced yet.

That was true until yesterday, but what did that have to do with anything? Bills are lobbied for and votes assessed long before they are introduced officially. It’s over late to lock the barn door after the horses have run off. Previously proposed bills HAVE been introduced and were not passed, and there is no reason to believe there is any major changes to the new bill’s language. Those who may be lobbying for the Orphan Works act weren’t waiting for it to be introduced to start working on getting votes for it. Why would we who are going to be seriously affected by it wait? Anyway it’s out now, so it’s a moot point.

Myth #2. “If I want the copyright on my art to be recognized, I’ll have to pay to register each piece!”

She says: That isn’t the case now, and it isn’t likely to be the case even if an orphan works bill passes. In current copyright law, copyright protection exists “from the time the work is created in fixed form” — in other words, the instant I hit “post” on the form I’m typing this blog post in, the instant you step away from the canvas, the instant you hit “save” in Photoshop, that work is “in fixed form” and protected by copyright. This applies to all literary, musical, dramatic, choreographic, pictorial, graphic, sculptural, video, audiovisual, and architectural works, as well as sound recordings.

Huh? Nobody is arguing that the work itself isn’t copyrighted just like it as before. It’s how that copyright is protected that is at issue here. The ongoing discussion is how to create a way that someone wanting to find the creator of a piece of artwork be able to do so under a strictly defined guideline. The 2006 Orphan Works Report specifically talks about the establishment of a registry (page 106), and how they believe a private registry (i.e. a company that does it as a business) is the best way to go.

Most of her “arguments” against the perceived misconceptions of the Orphan Works bill are predicated on the fact that it will not change existing copyrights as they are applied to creative works. She repeatedly restates this. She’s right, it only changes how those copyrights are protected. Under Orphan Works logic, even though it’s still illegal to steal a car if you can show you didn’t know who owned it and made a “reasonably diligent search” to find the owner but couldn’t, then it’s okay if you drove it around for a weekend or two… but I digress.

The entire fiasco of the Orphan Works idea hinges on the vague description of a “reasonably diligent search” that needs to be performed by a party wanting use a creative property they have found somewhere that they do not have an immediate way of finding the creator. What is a “reasonably diligent search”? A Google search for “guy who did this cool caricature of Bono?” Discussion of creating a registry for creative works has been a part of this whole thing since day one. The logistics alone of individually registering each piece of art I’ve ever done is staggering, let alone my having to possibly pay a fee. It’s a pipe dream to think that an Orphan Works bill can exist without a clear definition of what constitutes a “reasonably diligent search”. She’s right in that it’s not what the proposers of the Orphan Works bill want… they want anyone to be able to use anything they find without paying and place the onus on the creator to prove they have infringed on them WITHOUT making some effort to find them.

According to the Illustrator’s Partnership’s examination of the actual bill:

The language in the draft confirms our warnings. If this bill passes, you’ll be forced to clear all your secondary licensing rights through at least two government certified databases – or risk orphaning your art.

(more…)