Research Position Paper ~ Tony Shilling

Captain America Would be Disappointed

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 its 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,” making themselves the villain of their own stories.

There was a time when an artist used to take solace in knowing that under a copyright law he was protected in selling his creations for a profit; copyright is understood as protecting the rights of someone (or someones) who own a specific object or creation. In fact, the United States Copyright Office’s website explicitly states that their mission statement is “To promote creativity by administering and sustaining an effective national copyright system.”  Unfortunately, all this seems to do is act as positive advertising; yes, the Copyright Office wants to promote creativity, but the business practices, and awful people of the new age, have ran that into the ground, to fill the hole with money instead.  This is not what copyright is, nor what it was, and to protect the creators of this new time, an updated definition is necessary.

That said, copyright as of the moment is defined by Mirriam-Webster as “the exclusive legal right to reproduce, publish, sell, or distribute the matter and form of something (as a literary, musical, or artistic work).”  This is the pure, bare-bones essence, of course; copyright is not something that be summed up in one statement.  If that were the case, nothing would be vague, documents would be drastically condensed, and trials such as Marvel’s would never need to exist.  No, copyright makes sense in theory, but when it comes to an individual case the issues arise.

The main dilemma is that no one person defines what copyright is or can be; whoever is drawing up the contract, both the writer and the party claiming/purchasing ownership, and the party whom the right is being bought from must come to an agreement, and that contract defines a certain copyright.  In this case, Marvel would be the largest contributing factor to melding their own definition.  Terms are different per contract under the same company as well.  Both Marvel Entertainment and DC Comics own a character named “Captain Marvel,” for instance, and there was a time when Marvel had serious issues with this correlation.  After numerous court cases, it was ruled that DC would be permitted to keep the name for their character, but he must be marketed as his catchphrase of “Shazam!” rather than his actual name on any merchandise; they own him, yet his usage is restricted under Marvel’s claim.

As per the case at hand, the story is rather depressing; sometimes life just cannot be simple for the best people, and that is not about to change.  The copyright claim by Marvel introduces the public to Mr. Gary Friedrich; now, Mr. Freidrich is not a household name, but his creation certainly is.  Friedrich is the creator of the comic anti-hero Ghost Rider, and could certainly use a hero at the present.  In 2007, Friedrich filed a suit against Marvel Comics (now Entertainment) for improper usage of his character under copyright laws, demanding royalties to paid to him in compensation for Marvel’s Ghost Rider film and subsequent merchandise.  Friedrich would lose the case, and Marvel would not owe him a dime.  But like all good villains, Marvel held a grudge.

2011 would see a return of the battle of Friedrich and Marvel Entertainment, the ball being served by Marvel this bout; Marvel issued a law suit against the comics-creator, now retired, for appearing at a comic convention and selling Ghost Rider merchandise for a personal profit.  According to Marvel, Friedrich infringed upon Marvel’s ownership rights as he profited personally and solely from unauthorized Marvel products and artwork on multiple accounts, breaking the law.  The case ended early in 2012, and it was ruled that the destitute, elderly, and all-around broke Gary Friedrich would pay Marvel Entertainment $17,000 and stop boasting that he is the creator of Ghost Rider (O’Neal).  Also keeping in mind, this is money that Friedrich was trying to raise to make ends meet in the first place.

Regardless, the comics community is up in arms (Murphy).  Marvel is suing their own creators!  This is not even the first occurrence of such actions; Marvel held the same grudge-fueled stance against the estate and heirs of the Jack Kirby legacy.  Kirby, or “The King,” is hailed as the greatest comic creator and artist of all time, being responsible for Captain America, The Avengers, the Hulk, The Fantastic Four, and the list trails on  (“Jack Kirby”).  His heirs sued Marvel on the same grounds as Friedrich, and, unsurprisingly, was counter-sued by Marvel claiming that the Kirby legacy owns no rights to any of his creations, Marvel is in sole dominance, and may use said creations as they see fit.  Thus, Marvel is not just making one-off exceptions but is demonstrating just what power they have.  At this point, we could really use a hero.

Something to address is that Marvel is not doing anything legally and professionally wrong.  In fact, in any other situation, the actions taken would be quite commendable.  Marvel is a knowledgeable company and rather brave and secure enough of their personal image that they have no fear of disloyalty or boycotts.  Marvel has every right to sue; according to the bare-bones definition of copyright, a law is being broken.  Therefore, Marvel has every right to conduct a lawsuit, and that is not wrong in the slightest.  Morally, however, suing employees who illustrate for the company for a living is simply disgusting.

There is a question to pose however, and is quite crucial in saving the artists: if a law has been broken at all.  Yes, if copyright is the only analyzed law then certainly it was broken, but there are several loopholes that could possibly be exploited in favor of the creators; parody and Fair Use.  Under United States Copyright Law there exists two distinct clauses that protect forms of art from having legal action brought against them, both of which read along the same lines yet differ in usage; in instances like this, they are saving graces.

Fair Use is more of the clarification of how parody can claimed; under the Fair Use policy, content of some subject under questioning will be analyzed under four factors:

  • The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
  • The nature of the copyrighted work
  • The amount and substantiality of the portion used in relation to the copyrighted work as a whole
  • The effect of the use upon the potential market for, or value of, the copyrighted work

determining whether or not an infringement took place (“Copyright”).  Parody, though, deals more along the lines of “bending the rules;” Saturday Night Live is a major abuser of parody limitations; certainly no one is assuming that Jim Belushi appearing as a rather comical Hulk is meant to be as meaningful a story as Bill Bixby’s, yet he is still a green, “hulking,” rage-fuel monster in purple pants, and recognizably the Hulk.  Parody protects this in stating that no harm is meant to come towards the copyright holder and that all proceedings were all with good intentions and in the name of basic fun (Deazley 2).

That is exactly what comic artists do though.  Marvel’s stance is to threaten its artists and creators from profiting off of commissions and other “unauthorized” art pieces with vicious law suits.  Yet, under Fair Use, Marvel must clarify “the effect of the use upon the potential market for, or value of, the copyrighted work” and how this is detrimental to the Marvel brand.  Coincidentally, the one major point Marvel has never confirmed is in fact how unauthorized art hurts them.

Gabriel Hardman is the current interior artist of one of Marvel’s top-selling books Secret Avengers, in which a ragtag band of Avengers come together in wetworks black-ops missions to defend their nation.  Hardman, thus, has become quite the start again, notably for his new design of fan-favorite character Hawkeye.  Hardman could appear at a convention, where he would accept on-site commission work, and be requested by a fan or, even better, a father for his little boy too shy to approach the table, to sketch Marvel’s Indigo Archer.  Marvel, naturally, would sue as they have not given consent to the sketch being produced.  But this sketch does not hurt Marvel as a brand in the slightest.  If anything, it promotes the brand to inspire audiences to continue to purchase books featuring the character, even other merchandise licensed by Marvel such as toys, statues, and posters.  Now, if Hardman were to draw Hawkeye flipping off Captain America as the characters attitude would normally suggest, then yes, it is reasonable for Marvel to be throwing a fit, but this is rarely the case and such requests are usually denied based on sheer principle.

Fair use is the key to side-skirting the law suit here.  While the images may not be directly a parody, though certain art styles resembling more of a caricature would qualify, Fair Use would require how what Hardman or Friedrich is doing is anything unfair.  Which, they are not.  If Marvel were to attempt to explain its actions, the entire case would fall apart, because the court would soon realize that there is nothing to be tried.

Marvel would prefer to rely on the law being as cut and dry as the simple statement given by the United States Copyright Office, but copyright law just is not that simple; it never will be.  These loopholes exist, and unfortunately are being entirely ignored, intentionally or otherwise, to the point where creators like Friedrich cannot even take solace in his own work.  Marvel is sadly too blinded by the notion of suing a few pencillers for mounds of money, rather than do the moral thing.

Frankly, that is what this entire issue comes down to: Morals.  It is no question that Marvel is entirely right in suing based on the contracts signed at creation or hiring.  The question is how right it is to be suing at all; regardless of anyone having the capability of fighting off Marvel’s onslaught, the battle should not have to occur in the first place.  The Golden Age, the Silver Age, even the Bronze Age of comics are all things of the past, and gone is the respect in the medium that came with being a creator.  Comics are a dying medium, and die an inch more with every blockbuster film released; corporate and profits are the driving forces now, not the concept of beautifully written and illustrated characters being an escape and a source of enjoyment for just about everyone.  This change, the evolution, has made everyone a cynic, and morals have dwindled to the point of  it being acceptable of a company to sue its own employee for doing exactly what he does for a living.

Of course, these actions would be much easier to combat if there was enough unity among fans and creators alike so that we could all assemble and proclaim just how wrong these practices are, but marginal agreement does not exist.  Rather dumbfounding as it is, there are artists who have no quarrels with Marvel’s actions; not just recognizing that Marvel has every right to, but literally having no issues.  Robert Liefeld, the creator of Deadpool, Cable, and the original X-force, was among the first creators to speak out in reaction to the Friedrich’s case and fan petitions, stating 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” (Liefeld).  Now, he certainly has a respectable stance, and Liefeld is most certainly correct: Marvel does own all creations and characters signed over to them, whether at time of creation of just purchase.  Per such, Marvel is given free-reign to do whatever they choose, and the first Friedrich’s proved that this is the case no matter when contracts were signed as what was a possibility at the time  (Gustines).

Liefeld is also right to suggest that no one has won a suit against Marvel; in fact, if the current procession is to continue, no creator will ever end victoriously.  But his statements give the impression of being backed into a corner; Liefeld is giving up and putting his toys away before someone breaks something.  This is not wrong in any way, but it does strengthen everything Marvel is trying to do: inspire fear.  If one of the most infamous creators, and one who actually is a household name, can boast that artists need to “know what [they] signed” then Marvel will be entirely justified in future legal actions!  Awareness is not a bad thing, but awareness and allowing Marvel to stop good people from their lives’ passions and a small profit is not something to be proud of.

All Marvel has managed to accomplish is sullying its once good name; regardless of sympathizer’s views, Marvel’s actions have proven to be controversial enough to be discussed lengthily and shine very negative light in its corner.  Marvel has managed to succeed and prosper from the misfortune of artists and ignorance, and we cannot tolerate this.  Parody and Fair Use laws can apply and be a very useful tool against Marvel’s current regime.

Ignorance is the seed of all the evil here; Marvel might be the gardener, but what its spreading is hurting its own brand more than anything else.  Artists are too afraid to combat Marvel as they know it is next to impossible to succeed, and considering the risk posed is a fine that could start at $17,000 and even her own reputation being sullied for a poor miscommunication, and no one is going to blame them for it.  But backing into a corner is not the solution.  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.  Marvel is not wrong to be pursuing action, but they are wrong to succeed and force their artists to stop drawing such great characters.

Why Fair Use has not been pursued as a viable means to protect the artists and creators who so nobly just want to draw and make fans have a pleasant experience is beyond comprehension.  Marvel might have access to Disney’s hundreds of ace attorneys, but even the best attorney has enough understanding and respect for his own field to recognize when a strong opposition such as a Fair Use claim has been brought to counter the suit, which means the weapon has remained unarmed in the creators’ arsenal.  If the legal proceedings are going to advance as far as the trial, which they should not regardless, then Fair Use is the strongest defense to be presented.  By Marvel’s own logic, if Gabriel Hardman were to take a leave of absence or move onward to a new title and John Romita Jr. took over the art direction for Secret Avengers in his place, would it still be the same book?  Is Secret Avenger Hawkeye the same Hawkeye if Romita Jr. grows his hair out, changes the color of his bow, and gives him a few extra pockets on his harness?  This is reaching surely, but technically within the realms of Fair Use under artistic license, something every artist is granted based on principle.  The difference is that the art is authorized, and therefore cannot “hurt the brand.”

The whole debacle is a money grab, this is blatantly obvious.  Marvel is more than a comics publisher now, as it has welcomed a plethora of new media advances to take hold and deliver millions of dollars; Marvel has realized that it is in fact one of the most powerful corporations in the nation, and it does have the ability to conduct some fairly devious actions, especially while backed by thick legal documents and knowledgeable personnel.  Everything Marvel does is entirely right; legally, Marvel is right to pursue any issue that could infringe upon the brand, its characters and productions, in addition to harmful proceedings.  Yet, nothing harmful is occurring.  Fair Use and parody laws allow artists, forgetting for the moment artists employed by Marvel to draw these characters for a living, to illustrate certain images and characters even if they are copyrighted, as long as no harm or slander comes to the rights’ holders.  Marvel has been unable to prove any harm to themselves, nor has anyone requested they even bother doing so, and immorally continues to initiate lawsuits.

When America’s own superheroes cannot even rescue their creators, the world may truly be at loss.  Marvel’s continuous and stringent efforts to thwart its artists from making a personal profit drawing the characters they were employed to illustrate in comic books grow ever intensely.  The Avengers used to battle on the Helicarrier of S.H.I.E.L.D. or in the streets of New York City in the shadows of Stark Industries Tower, and now fall as a part of a losing battle in a United States courtroom; Captain America would hang his head down in disappointment.  And yet, perhaps the real reason the heroes are losing this war is from hiding behind a shield and being too afraid to arm with a bow; the artists and creators have several weapons at their disposal to do more than attempt to defend themselves, and someone needs to stand force Marvel to understand that what it is doing is intolerable; it’s time for a brave hero to rise and stay standing strong.

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.

Murphy, Sean Gordon. “No More Unauthorized Artwork.”  DeviantArt.  http://seangordonmurphy.deviantart.com/journal/No-More-Unauthorized-Artwork-285030622  14 Feb. 2012

Complete Version fo the U.S. Copyright Law, December 2011.” U.S. Copyright Office (2011) Title 17.  http://www.copyright.gov/title17/ Dec 2011

Gustines, George Gene. “Marvel Wins Court Battle Over Ghost Rider.” New York Times 30 Dec. 2011: 4. Academic Search Premier. Web. 19 Apr. 2012.

Fair Use, November 2009.” U.S. Copyright Office (2009) http://www.copyright.gov/fls/fl102.html

Jack Kirby.” Columbia Electronic Encyclopedia, 6Th Edition (2011): 1. Academic Search Premier. Web. 19 Apr. 2012.

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1 Response to Research Position Paper ~ Tony Shilling

  1. captainobvious93 says:

    This paper must be about comic book characters.

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