Rebuttal Essay Rewrite ~ 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.  Our 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 to what length is Marvel suggesting it is worth hurting not only the employees but the entire spirit of comicdom along the way?  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, whom they employ, for selling artwork such as personal commissions of copyrighted Marvel characters for a personal profit (O’Neal).  Normally this would not a drastic issue, but Marvel hiring someone like Gabriel Hardman to draw the Secret Avengers for the mass-market book and prohibiting him from drawing Hawkeye as a commission is akin to suing a plumber for fixing his mother’s sink.

The major argument posed here is not merely whining against the law.  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 (O’Neal).  By United States copyright Law, the creators wanted to see their work published, so whether it was someone like Jack Kirby designing Thor, working for Marvel (ignoring that the character could be considered public domain; this is not that Thor), or Friedrich appealing, they signed 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 (“Copyright”).

But this should not diminish the impact of the creator over the character; when Marvel sued Friedrich on the grounds of his selling Ghost Rider merchandise at a comic convention, Friedrich’s punishment includes a $17,000 payout to Marvel, and for Friedrich to stop saying he’s the creator of Ghost Rider (O’Neal).  Now it is no longer a matter of ownership and usage rights: Marvel is 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 whether laws are being broken by artists in the first place; it is quite possible that parody provides 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 do not violate copyright laws (Deazley).

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 credit of Belushi; SNL is permitted to use exact interpretations of copyrighted characters for their use, 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?  Now, obviously this is stretching the limits, but the point still stands.  There is no strict dictation of who a certain character is.  All of these characters are based on appearance, so the rule is virtually no existent; otherwise no other artist could ever draw the character.  Another key element that lends to this is artistic liberty.  No two artists draw the same, and the basic recognized element is costume; the question again, 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 Marvel chooses to ignore the actual law in suits, and wins, 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” (Liefeld).

It is very disheartening that so many creators would choose to side with Marvel and cease working on their wonderful stories and drawings.  The main Copyright Law is conveniently vague, but there are other ways to gloss and side-step it and still succeed; parody and Fair Use are strong weapons to have against Marvel’s legal team.  Marvel is not wrong in knowing it has the ability to sue, but wrong for actually suing and even more so for succeeding.

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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