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| SUPERMAN's first issue of his own comic |
Consider, if you will, fellow Criv-ites, the following scenario. A person buys an ornament for £2 from a charity shop. Later, upon reflection, they decide that they don't really like it, so when someone collecting for a jumble sale chaps their door, the ornament is handed over to help raise funds to repair a leaky church roof.
Ten years later, the first person is watching ANTIQUES ROADSHOW and sees "their" ornament declared as being worth £20,000. Do they have a moral or legal claim on any of that money if the current owner decides to sell?
Now consider this. Someone asks an artist to paint a picture of their house and gardens. He charges them £300 and is extremely pleased at the amount he has secured for himself. Five years later, a visitor to the purchaser's house is so enamoured of the painting that he offers them £5,000 for it. Over the years, it changes hands for increased amounts until it's worth £50,000. Does the artist have a moral or legal claim on any of the money it has changed hands for over the years?
The answer is surely "no" - isn't it?
So what's the difference between those two examples and what happened to SIEGEL and SHUSTER over SUPERMAN, or JACK KIRBY and the many characters he created or co-created for MARVEL or DC COMICS? Or the work LEO BAXENDALE (or any artist you care to name) did for D.C. THOMSON or IPC/FLEETWAY? I would suggest none at all.
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| BATMAN's first issue of his own comic |
If you consent to sell something outright for an agreed fee, then it's really nothing to do with you what the purchaser does with his purchase or how much he profits from it in the years to come. If you buy a house for £80,000 and then sell it for £100,000, the previous owner (even if he built the house) is neither legally nor morally entitled to a share of your profit. And, back in the day, that's the way it was done in the world of comics.
That's not to say that I have anything against present-day creators' rights, profit-sharing, copyright ownership, artwork return, or anything like that - because that's the way things are done nowadays.
However, back in the 1930s (until the late '70s, early '80s), comics were just a job to the writers and artists - 'twas the publishers who took the financial risk in launching a new comicbook, so why shouldn't their share of the profits proportionately reflect that risk?
When a publisher bought a character, they bought it outright - if it was a success, they made money, if it was a failure, they didn't. It's a safe bet that there were a lot more failures than successes in those days. That was just the way the cookie crumbled.
Anyone got any thoughts on the matter? Let's hear them.
12 comments:
http://goodcomics.comicbookresources.com/2008/03/30/superman-copyright-faq/
I think the Siegels lost when DC appealed but anyway. This is the legal thinking.
I think that demonstrates why the law is often an @ss, Phil. Siegel & Shuster couldn't sell Superman until DC bought the character (with no idea it would be such a hit) so the fact that the Supes strip in Action Comics #1 is now regarded as belonging solely to the Siegel Estate is nonsense in my opinion. The copyright laws have been changed a few times over the years, but I think this retroactive shifting of the goalposts is a dodgy practice. S&S knew the deal going in back in 1938, and they certainly weren't poor by the standard of the times, so they should've stuck by their agreement. Superman is only worth whatever its worth today because of the money DC have put in to maintaining the character down through the years. It might not now be the law (in the U.S. at least), but on a point of principle, if you're prepared to sell something for an agreed price at the time, you really shouldn't be entitled to a share of any accrued value many years later. Nor should your descendants. So, as I say, that might not currently be the law in the states, but I'm more interested in the principle of the thing.
legal rights are a separate issue from moral obligation, if I where to make $20,000 from the sale of a painting, yes I would feel an obligation to reimburse the artist, whether I actually did so would depend on how much I needed the cash weighed against how much the artist needed it. Copyright encompasses a right not property, although property can be inferred. copyright is the exclusive right to copy and distribute media granted to an author, that is maintained by a legal framework, it being negotiable, the author can transfer that right.
That's were the fun begins, contracts dealing with copyright transfer can be contested can be contested on all sorts of grounds. The most obvious one is equitable treatment for the author, since slavery is illegal in most jurisdictions, an author must receive something for their efforts else, in the UK at least, that author would find themselves in a good position to challenge a contract, although It's not quite the same in the US.
This particular case is a bit of oddity though, since it concerns adjustments to copyright expiry dates made in the US. As I said, rights are granted and this case they chose to grant authors, or rather their heirs, the option to rescind rights during the extension. You could argue the rightness of that decision I suppose but effectively it turns out to be of no consequence in this case, because DC/Warner seem to have secured a decision in their favour in the appeal court.
To clarify, DSE, if you bought a painting for 5 grand from the artist - a price he suggested - then 20 years later you were offered 20,000 for it, you'd give the artist a share? Why? It's your property to sell, bought outright at a price the artist set. It would be different if the artist had reached an agreement with you beforehand, about receiving a specified percentage of any increased value should you ever decide to sell the painting, but that usually doesn't happen in these cases.
When Siegel & Shuster sold Superman to DC back in 1938, they sold their share of the copyright - and they knew it. In fact, they went back several times and sold any claim they MAY have had for quite tidy amounts of dosh - and that was before DC decided to give them a pension. On a point of principle, if you sell something, whether it be physical property or intellectual property, you should kiss it goodbye. That's the way things were done back then. Retroactively moving the goalposts long after the event might favour one half of the equation, but usually stabs the other in the back. If ever Slam Bradley becomes a hot property, will we see Jerry Siegel's family chasing a share? Surely they should be doing that now, instead of waiting for DC to spend money publishing (and therefore promoting) the character? They would be if they were driven by principle rather than greed.
I'm still a bit uncertain about how things stand at the moment, as I notice that Superman comics carry the tagline 'By special arrangement with the Jerry Siegel family'.
I'm not really in the splash 5 grand on a painting market, I'm talking about substantial returns on nominal outlay. Making a killing by perhaps exploiting the naivety or circumstance of someone not in a position to realise the full value of an item, is pretty much the equivalent of swindling old ladies by offering to take their junk of their hands, then selling it for a fortune on the antique market. Perhaps it's not a particularly fashionable notion but I'm not impressed by tales of huge profit at the expense of others.
As I mentioned copyright encompasses a right and it's up to the authority that administers that right, to choose on which terms they grant that right. Shuster died in 1992 so the default period of copyright retention has expired under the agreement he signed, although the option to extend still applies. The legislators in the US bestowed the option to reclaim rights to an author's heirs during that extension, when they adjusted the copyright expiry terms. DC/Warner's rights over Superman, flow from the authority that extends those rights.
Of course Superman is substantial property with a body of authorship that greatly extends his original creation but if this case were say, concerning a novel and the author's heirs reclaimed the copyright to that novel, would that be such a big deal? All that would happen is that a publisher would need to renegotiate a contract to distribute that novel or let their rights slip after the initial expiry period. Except for The Lone Ranger, which is a special case, copyright is not at this moment granted for perpetuity, it expires. Want to make a film featuring Conan, go ahead knock yourself out, just don't call it Conan the Barbarian, same with Tarzan.
As a matter of speculation, would it be such a bad thing if DC/Warner were to lose their rights over Superman? I'm thinking it could be good for the character, give him a new lease of life. Of course he wouldn't be able to use any of those superpowers DC gave him or interact with any of the later characters.
Well, we're getting into the 'needle in the haystack' kind of discussion that you're so fond of, DSE. I'm talking about principle, not copyright law, which can, and has, changed several times over the years. When National bought Superman, they were only wanting to fill a comic - they had no inkling of the character's potential worth. It was quite a financial outlay for a publisher to produce a comic, so they bought copyright outright to protect their investment. Imagine spending thousands on a comic, and then a creator accepting a better offer from a competitor to take the character over to them. Original publisher's done all the work and made all the investment, then they're left with diddly-squat. So the 'diddling old ladies' comparison doesn't hold water in this instance.
And remember that values change. You spend 5 grand on a painting, ten years later, its market value is only £200 - are you entitled to claim a rebate from the artist? Of course not! However, that should work both ways. S&S created Superman in 1934-ish and nobody would touch it. When DC bought it, it was only worth what they paid for it, as that was the going rate that S&S accepted. Did the property increase in value? Sure did, but I'd say that S&S, having sold the character outright (and knowing that they did), really had no claim on the character - then or later.
As for copyright laws today (whatever they are), that's fine, everyone knows the deal going in. However, to retroactively apply today's laws to yesterday's situation is a step too far, I think. And, it must be remembered, that S&S relinquished all future claims to the character more than once in return for a hefty fee, then changed their minds and came back again, looking for more. In my view, that's not ethical.
One could argue that Superman's current value is (as you alluded) as a result of the contribution of many writers and artists over the years, as well as DC's continued financial investment. Why should Siegel's heirs benefit from that? S&S made a fortune from Supes, they weren't the paupers they're made out to be. If they'd left some of that fortune to their heirs (instead of seemingly squandering it), that's fine, but I don't think that the heirs should have an automatic claim on DC's share of the profits.
I'm not sure what principle you seek to defend, I could be wrong but according to my limited understanding of this case. The court decided the conditions of the original agreement, under which the rights DC/Warner hold were accrued, have been satisfied. which has been decided under the principle of non-cognisance. None of the parties were aware at the time of the agreement, that the expiry date for rights would be extended. The legislators decided that those further rights would not default to the current rights holder, without without an option for the author's heirs to make a claim. As far as I'm aware that principle has been upheld, even under the judgement arrived at by the appeal court.
As for the risk of speculative investment in art, I thought I'd made it clear I was referencing the topic of opportunistic profiteering, which is a case that is clearly distinct. Yes someone who takes on board substantial risk, probably has good reason to hold on to the cash. Forking out 20 quid for a painting and then getting 10,000% return is not an equivalent circumstance though, there is no risk.
I haven't studied the ins and outs of the case in any great detail, but the principle I seek to defend is a simple one, DSE. If you own something, whether it be material property or intellectual property, whether created or acquired, and you decide to sell it outright for an agreed sum, then it's gone, man, gone. Don't come bleating after the fact that you didn't know its potential worth when you sold it, or trying to stake a claim on the accrued value. Let me state the principle in simpler terms. If you sell something to someone else, it's not yours anymore and neither you nor your heirs have, nor should have, any legal or moral claim to any increased value of the item or idea sold. As for today's U.S. copyright laws, no argument with them as they apply to situations now, because everyone knows the deal going in, but they shouldn't be retroactively applied to what happened under different conditions. I don't think I can make that any clearer.
I do think copyright laws could be simpler 'though. If you create something, the copyright should automatically be yours. Unless, that is, you sell it (the copyright) outright to someone else; then it's theirs. It really should be that simple.
As for 'opportunistic profiteering' as you call it, no, I don't think you were specific enough as to the conditions. If I buy something for £20 knowing that it's worth £20,000, then, yes, that's opportunistic profiteering'. (Although if the seller was more than happy with their £20 at the time because the item only cost them 50p, then there's probably room for discussion on the matter.) However, if I buy something for £20 and years later its worth has INCREASED to £20,000, then that isn't opportunistic, that's just me being a jammy sod. Superman falls more into the latter category than the former.
Copyright law is simple, it goes it like this: if you're an author, artist, musician, anyone who generates marketable property, the overwhelming likely hood is that you're gonna get stuffed. That's the reality for most people I'm afraid, you don't see those Ferraris in the car park being driven by the artists and writers do you?
Sources differ on the exact amount, but according to the census of 1940, the average American wage was $1,368. Siegel & Shuster were EACH on around $50,000 a year, hardly a pauper's wage. When Jack Kirby died in 1994, his estimated net worth was 20 million dollars, and John Byrne earned more than 10 million dollars from his comics work. yeah, you sometimes DO see those Ferraris being driven by the writers and artists. Or, at least, they could afford them if they wanted them.
Not being a lawyer...my two cents.
You have no claim on the art. Particularly if it was work for hire. Where it gets messy is the Superman case. And it's almost the only case. poor Jack Kirby. But his case was settled for lots of legal seasons so everyone is happy now.
The reason being Superman wasn't work for hire he was created first then shopped around.
So while DC owns all the work Siegel created under DC they didn't own the concept of Superman as it was before he was published.
It's a fine legal line but I know you follow the reasoning. And it's also not agreed upon because the higher court reversed the ruling and agreed with you.
Morally of course DC couldn't stand by while the creators of Superman were living in poverty while Superman was making millions but that's a separate matter.
Personally ( I met Siegel's daughter at a convention ) while my sympathies are with Siegel I don't see they have a case since they " settled" with DC in the fifties.
i didn't get a chance to talk to her about the case since it was going on and I think everyone was told not to talk about it.
I knew Superman was created before DC bought it, and that was why it wasn't later regarded as falling under the 'work-for-hire' concept, Phil, but to my mind it doesn't make much difference (so I'm glad that the higher court agrees with me). DC offered S&S a certain amount for the character and copyright and they accepted those terms and conditions. Nobody knew at the time that Supes would become a monster hit, so DC were hardly trying to exploit them (at least, not any more than any employer exploits any employee). As you say, S&S settled with DC in the '50s, and I think there was at least one more occasion (possibly two) where S&S again signed away any rights they may have had. If they were living in poverty at any time, it seems to be mainly as a result of the way they mishandled their own careers and finances. They certainly earned enough while working to have set themselves up comfortably for a long time. I can't say I entirely blame them for the way they felt 'though. It must've been extremely galling to see others getting rich from something they'd created, but they'd sold the property when no one could have foreseen what Superman would be worth. Supes' success was as much a surprise to his creators as it was for his publishers. If they'd trod softly and not riled their employers, they could have been set for life. (Which, as it later turned out, they were.)
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