Rebuttal Essay ~ Tony Shilling

Captain America Would be Disappointed

America is the greatest nation in the world.

We as Americans are free, proud, and strong; this is the land of opportunity and prosperity.  Or, at least, that is what she was founded on.  Unfortunately, history has not been kind to America; every incident of the past has brought the nation to a cruel and cynical present.  Even the escapes from the real world like the comic book have suffered at the hands of modern America.  Heroes were founded as means of being aspiration goals and for the enjoyment of the masses in a time of crisis; now they’re pawns of an industry driven by economics and being better than it’s rivals.  A noble cause to be the best, yes, but at what length is worth hurting not only the employees but the entire spirit of comicdom?  Marvel is pushing the boundaries, using its legal capabilities to take action against artists personally profiting from the sales of unauthorized artwork, and it is here that they have crossed the line of “Cruel and Unusual.”

To clarify, Marvel is suing its own artists and character creators, who they employ, for selling artwork such as personal commissions of copyrighted Marvel characters for a personal profit.  Normally this would not be as drastic of an issue, but its the idea that Marvel hired someone like Gabriel Hardman to draw the Secret Avengers for the mass-market book and prohibits him from drawing Hawkeye as a commission even though it is his job; it’s akin to telling a plumber to never fix his mother’s sink.

The major argument posed here is not disillusioned.  To suggest that Marvel is right is much more than acceptable; in a very twisted, appropriate way, they are.  By law, Marvel Comics holds the rights to each character it publishes; Jack “The King” Kirby and his heirs do not own Thor, Gary Friedrich does not own Ghost Rider.  By United States Copyright Law, the creators wanted to see their work published, so whether it was someone like Jack Kirby who designed Thor working for Marvel (ignoring that the character could be considered public domain; this is not that Thor) or Friedrich making an appeal to Marvel, they signed contracts to give the use of the characters to Marvel.  As such, Marvel is allowed the sole usage of the character in whatever manners are outlined in the contract; anyone else is technically stretching or breaking the law.

But this should not diminish the impact of the creator over the character; as a result of Marvel suing Friedrich on the grounds of his selling Ghost Rider merchandise at a comic convention, Friedrich’s punishment includes a $17,000 payout to Marvel as well as Friedrich to stop saying he’s the creator of Ghost Rider.  Now it is no longer a matter of ownership and usage rights, its a point of sending a message.  Forcing the practically poor 60-plus year-old man to not only take away the one thing he’s done with his life that makes him a profit but to prevent him from boasting that he created a nationally-recognized character is horrifyingly severe; Marvel could not have asked for a better test candidate.

The true question at hand though is if laws are actually being broken by artists in the first place; it is quite possible that the law itself has a written loophole to prevent further legal action.  In art of all forms there exists a category exploited far more than any other: Parody.  A parody is an imitation of the style of a particular writer, artist, or genre with deliberate exaggeration for comic effect; in terms of the actual law, parody’s fall under the Fair Use Law and is not sue-able by grounds of plagiarism .

Saturday Night Live is the most open proprietor of the parody concept; the sketches conducted on the program constantly utilize copyrighted film, book, comic, and other media characters and do not pay any sort of royalties or licensing fees for each use.  The characters are not “deliberate exaggeration[s] for comic effect,” either; certainly John Belushi in Lou Ferrigno-style  Hulk make-up may look humorous, but that is more the fault of Belushi; SNL is permitted to use exact interpretations of copyrighted characters for their program with no drastic changes, basically.

The concept is just as applicable to comics.  If an artist is at a convention and sketches a commission for a child of Captain America, but draws the classic Captain America with no scaling detail and has him hold the original heater shield instead of the circular, is it still the currently-published Captain America?  Another key element that lends to this is artistic liberty.  No two artists draw the same, and the basic recognized element is costume; does adding an extra red stripe to Captain America’s waist-padding still make him Captain America?  The Fair Use Law can be stretched to permit all such actions, technically, and no one but the creator has the ability to say what something is or is not; that right prevents all legal action.

So, no, the law is not as clear as Marvel would prefer it to be to sue a few pencillers.  Elements such as the Fair Use Policy and the parody clause still exist and have been exploited for years, and are just as applicable in this instance as any other.  Unfortunately it is ignorance of the actual law that not only gives Marvel the ability to sue, and win, but will halt artists from continuing their passions; with each court case, the fear of a threat does not help matters either.  Artists continue to come forward with statements agreeing with Marvel, such as Robert Liefeld, creator of Deadpool, Cable, and the first X-force, boasting that he is aware that

“not a single creator that has sued Marvel for creative compensation has succeeded. The list is getting longer. Know what you signed.  I do not own Deadpool, Cable, X- Force—I get a generous payout on their exploitation, but I knew from day one, they are not mine. Period.  I signed those deals when I was 21 years old. I knew that pennies on the dollar were better than no pennies at all.  I was an eager young talent looking to change the game and the playing field, I did that through my creations. No regrets.”

It is very disheartening that so many would choose to side with Marvel and cease their actions of their wonderful work.  The main Copyright Law is not clear, but there are other ways to side-step it and still succeed; parody and Fair Use are strong weapons to have against Marvel’s legal team.  Marvel is not wrong to be pursuing action, but they are wrong to succeed and force their artists to stop drawing such great characters.

Works Cited

Copyright and Fair Use.” ASHE Higher Education Report 34.4 (2008): 31-52. Academic Search Premier. Web. 3 Apr. 2012.

Deazley, Ronan. “Copyright And Parody: Taking Backward The Gowers Review?.” Modern Law Review 73.5 (2010): 785-807. Academic Search Premier. Web. 3 Apr. 2012.

Liefeld, Robert.  Twitter.  Web.  14 Feb. 2012.

Cieply, Michael.  “Court Ruling Says Marvel Holds Rights, Not an Artist.” New York Times.  Web.  28 July 2011.

O’Neal, Sean.  “Marvel Forces Ghost Rider Creator to Stop Saying he’s Ghost Rider’s Creator.”  The A.V. Club.  10 Feb.  2012.

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3 Responses to Rebuttal Essay ~ Tony Shilling

  1. tonyshilling says:

    Hey Professor, could i get feedback on this? Thanks!

  2. davidbdale says:

    Tony, your opening paragraph has the big tone of a comic book epic! I want to hire that big-voice voice-over guy to read it aloud while the text scrolls by. Where in the past your big speeches have often been people-less clashes of concepts, here you give us proud Americans and big-time Marvel executives . . . almost. We Americans are proud, you say. But history has made us cynical. Even our escapes aren’t free from the taint of mean-spirited business. We created heroes, but they were stolen from us by an industry driven only by power lust. It was supposed to work for us, but now we work for it. I’m pushing it a bit here, I grant you, but in the spirit of the original, I hope. (Oh, and by the way, they’re using our own characters against us in this battle. All we want to do is draw them; all they want is profits.)

    Anyway, the sentence in which characters are most needed is this one:

    A noble cause to be the best, yes, but at what length is worth hurting not only the employees but the entire spirit of comicdom?

    The hurtful actions don’t attach to anyone: no company, no executive. Give us our clear villain.
    *its rivals

    P2. I like your analogy, but not its phrasing, especially not “as drastic of an issue,” which is a comparison that has nothing to compare to. Normally this would not be a drastic issue.
    *whom they employ
    *it’s the idea
    But hiring Gabriel Hardman to draw the Secret Avengers for the mass-market book and then suing him for drawing Secret Avenger Hawkeye for a kid at a trade show is like suing a plumber for fixing his mother’s sink. I’m sorry. I will resist the urger to rewrite any more of your sentences. You’re doing a much better job yourself these days without me.

    P3. Can an argument be disillusioned?
    *Thor; Gary
    *copyright law
    Simplify your Kirby/Friedrich sentence to remove the “iffiness.” When Kirby designed, when Friedrich worked, they signed.
    The paragraph works because it’s a clear and straightforward stipulation that Marvel has the right to act an ass, so the clearer and more straightforward the better.

    P4. Sentence needs parallel: (a $17,000 payout) does not equal (Friedrich to stop saying). The personlessness creeps in here too, Tony. Instead of “When Marvel sued” we get “as a result of Marvel suing.” Instead of “Marvel is sending a message,” we get “it’s a point of sending a message.” Don’t talk about the drama. Dramatize.

    P5. *whether laws are being broken
    Rather than tease us with a vague concept first, why not: It’s quite possible that parody provides a loophole . . . .
    Grammatically, I think you mean “parodies fall . . . and therefore do not violate copyrights.”

    P6. *for their use
    *to the credit of Belushi
    Here you offer the example of SNL putting copyrighted characters into sketches free of charge or liability but without explaining why their use is protected. No matter how effective the makeup is, Belushi in a Hulk suit is a deliberate exaggeration. In no way is SNL telling a reasonable story involving a reasonable version of the Hulk character designed to infringe on the marketability of Hulk stories.

    P7. You cannot use a rhetorical question to make your most important rebuttal claim, Tony. Tell us exactly to what degree the scaling detail and choice of shields protects the artist or amounts to parody. Tell us how much the waist-padding contributes to Marvel’s claim of violation or the artist’s argument of Fair Use. I don’t think you truly mean to claim that the Captain America I draw for the kid at the trade show is a Fair Use version just because I added a stripe to his costume, but if you do, say so very clearly. And if your point is that reasonable people can disagree about the difference between fair use and copyright infringement, lead off your paragraph with that. It’s too important to trust to innuendo.

    P8. (Unfortunately it is ignorance of the actual law that not only gives Marvel the ability to sue) means (Sadly, Marvel ignores the law when it sues), right?

    P9. What exactly does “cease their actions of their wonderful work” mean?
    I’m not clear on the logic of “not clear, but there are”
    “not wrong to pursue, but wrong to succeed”? Are you sure that’s what you mean? Isn’t your point that they have the right to sue but are wrong to use it?

    Your essay overall appears to be a refutation of the claim you never quite identify: Copyright law is clear and unambiguous and utterly prohibits any artist from profiting from the drawing of any copyrighted character unless for the benefit of the copyright-holder. Readers would benefit from knowing early that that’s what you’re arguing against.

    Nice work, Tony! Let me know whether you’ll post a rewrite before the paper, or just incorporate revisions into your final essay. I look forward to seeing them.

    Grade Recorded.

  3. tonyshilling says:

    Thanks Professor, I think I may rewrite this; there’s a lot that you pointed out that I agree should be changed, and I would much rather see it made here first!

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