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Posts Tagged ‘movie’

In our society, signing ones names wields great power; but with great power...

The question “should I sign?” is one of the most pressing faced by artists. Our legal system allows people to form contracts that bind them to do just about anything, making signing scary, as the wrong contract can cost an artist money or control over their work. This post will explain the fundamental issues of what happens when one signs an agreement to transfer some or all rights in an artistic work.

Copyright, like all intellectual property, can be in more than one place at a time, leading to long and complicated agreements about who owns what. Further complicating the matter is the fact that copyright is a bundle of rights (right to make copies, right to make derivative work, right to distribute, right to perform, right to display, right to transmit) and each right can be transferred independent of the others. The two most common agreements involving copyright are assignments and licenses.

An assignment is like a sale, the copyright no longer belongs to the artist. During the life of the assignment, the owner may do whatever she wishes with the work. Assignments may be granted for all rights or just for some. A rapper could assign performance rights to a piece of music to a single act, while retaining the right to copy and distribute the underlying music and lyrics for himself. Assignments may also be for limited periods of time, limited uses, or conditioned on anything the two sides agree to.

Serious Hip Hop Album or Kia Car Peddler? Truly, the Choice is Yours.

A license is more like renting, it gives permission to use a copyrighted work for specific purposes for a certain period of time. Licenses may be exclusive to one user or non-exclusive, allowing the copyright holder to give permission to as many people as they choose. Returning to our rapper from before, instead of assigning the performance right to a single act, he could license the non-exclusive right of performance to ten. While retaining the underlying rights to the background music track, he could license the right to create piano sheet music adaptations. The rapper could even license his most memorable song to a car company so hamsters could jam to it, all the while retaining his right to sell the original album on iTunes. Doo-Da-Dippity!

Art by Jack Kirby, for whatever that's worth.

The combinations of what can be accomplished through assignments and licenses is limited only by the possible uses of a particular field of art and a few protections written into the copyright code. One protection is the right of the original artist to reclaim the copyright 35 years after assignment. This is done to give successful artists the chance to reclaim their early work that may have been signed away in the haste of youth. The children of deceased comic artist Jack Kirby are currently trying to reclaim the rights to characters he created while working for Marvel comics in the 1960s and 1970s. The outcome will turn on what the nature of Kirby’s “while working” was. If Kirby was a freelancer or he created the characters and them brought them to Marvel, he may reclaim the copyright. If he was employed by Marvel in a work-for-hire capacity, as I noted in my previous post, then everything he thought up for Marvel belongs to Marvel.

Tetris creator Alexey Pajitnov (right) with Henk Rogers, one of the men who secured distribution rights to the game for Nintendo.

At one point in the late 1980s, the video game Tetris was subject to at least five assignment or license agreements. Nintendo brought the game to it’s Gameboy handheld system because it negotiated with the proper people, the Communist Soviet Government, rather that the man who invented the game, or his department head, as other tried to do. Because of messes like this, companies will require an artist guarantee they are the true owner of the copyright and the deal won’t go sour later because the person signing the deal didn’t have the right to.

The idea of “optioning” a script or book is often misunderstood. An option contact is an agreement by an author to keep their work “off the market” for a period of time to allow the producer time to put together financing or work out other details around a project. A screenplay or book may be optioned for as little as one dollar and guarantee only that the author won’t sell the work to anyone else for the next six months. That’s it. Unless a script is later bought by assignment or licensed for use, the option is worth only the original payment and the buyer holds no right to use the work.

None of this answers the critical question “should I sign?” because the answer to that depends on an artist’s goal for his or her work and career. The basic thing to remember when signing an agreement is that you will be balancing money and control. The more control you give, the more you should be paid. The more control you retain, the less money you will receive. Young artists often have to give control of their art and careers away for the financial backing studios and labels provide. The money people aren’t necessarily being greedy by retaining most of the profits; they are the ones who took the initial financial risk and bear the losses if money isn’t made.

Lawyers can be very useful in understanding what specifically you’re being asked to sign away and what you’ll be getting in return. Lawyers often know of different ways for you to achieve your goals and different industry standards.

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Equity aids the vigilant

My last two posts have explored the question of artists taking elements of DC comics Batman character and using it in their own art. The issue was originally posed to me by a comic artist at a convention who wanted to know if DC could come down on him for incorporating DC characters into his work. Anyone who has ever attended a comic convention knows that the practice is common. Artists unaffiliated with the copyright holder will sell their “fanart” creations within full sight of the rights holders, sometimes even a few booths down. My first pass at explaining how a “fan-artist” could defend themselves was to explore fair use in the copyright realm. Fair use is a close call, and courts could go either way, so my main advice to artists was to keep it small. I wanted to explore one other theory that could protect artists: by doing nothing with the full knowledge of what artists are doing, DC triggers the ancient-yet-still-good doctrines of laches and equitable estoppel.

Laches acts to prevent a rights holder from bringing a claim if they have delayed for an unreasonable period of time and the delay makes it hard (or impossible) for the second person to defend themselves or change their ways. The theory behind laches is good old-fashioned unfairness and common sense.

About ten years ago one of the original screenwriters for the James Bond film series brought a suit against the movie company producing Bond claiming that he had created the film persona for Bond and that every Bond movie infringed his copyright. Like my exploration of Batman, the issue was over the copyright of the character, rather than a specific story. Kevin McClory had collaborated with Bond novelist Ian Fleming to create the script for Thunderball. McClory claimed the Bond character of his script was a new creation from the books and that he was therefore the author of “Bond” in film.

Promotional poster for Thunderball. Notice that McCrory is given a producer and "story by" credit.

 

The court never reached the question of whether or not McClory’s Bond had been infringed, he had simply waited too long. Laches asks three questions: did you delay? did you have a good reason to delay? did your delay make it harder on the person you’re going after. There are no hard rules to laches, no set time timetables, it’s up to the court’s common sense and past precedent. In McClory’s case, he had known about each Bond film for the past 30 years and said nothing. Over the course of time, key witnesses (like novelist Ian Flemming and screenwriter Richard Maibaum) had died and could not be called on to testify. Additionally, the movie studios producing Bond films had invested one billion dollars in creating and promoting the Bond franchise.

McClory had asked the court to give him some of the money from previous Bond film and prevent any more films from being made without his permission.  The court denied both. Ordinarily, laches doesn’t speak into the future, but it did that time.

Looking at comic fanart and laches, it is possible to see a court barring DC from coming after someone for drawing their own Batman. The analysis would turn on the specific facts of that artist. Imagine an artist who had worked his or her own table at the last ten San Diego comic cons, displaying, drawing, and selling their own Batman at each. A court could find that since DC representatives were also in attendance, and said nothing, they had unreasonable delayed bringing suit against the artist. The artist would then have to show that the delay had either cost them witnesses or caused them to create a business model dependant on the sale of Batman drawings. If one of those could be met, Laches would trigger and DC could not collect money from the artist. DC may still be able to prevent the artist from ever drawing Batman again, however. Even though the court in the Bond case extended laches protection into the future, they had specific reasons on those facts which would not be present in all cases (namely, the death of Flemming and Maibaum made it impossible to sort out who had truly “invented” Bond).

Equitable estoppel prevents a rights holder who has indicated to another that certain behavior is okay from then coming back and suing after the second person has invested time/money/etc. Trivia: estoppel is a legal term meaning “to prevent or stop.” I don’t know why they can’t just say “stop.” I wondered the same thing in law school 😛

Also about ten years ago, Dan DeCarlo, creator of Josie and the Pussycats, sued Archie Comics, claiming that they had stolen control of Josie (the character) from him. Equitable estoppel asks four questions: did the rights holder know of the second person’s use? did the rights holder’s action or inaction indicate to second person that use was okay? was the second person ignorant of rights holder’s objections? did second person suffer financial harm in reliance on rights holder’s action or inaction?

The credits (down and right from the

 For Josie, the analysis was: yes, DeCarlo knew of Archie Comics use of “his” characters in continuing comics, merchandising, and television shows. Yes, his inaction signaled to Archie Comics that it was okay for them to do so. Yes, Archie Comics was unaware that DeCarlo still considered the characters his. And yes, Archie Comics had relied on DeCarlo’s inaction in their marketing of the Josie brand.

Turning again to comics and fanart: Yes, DC knows of many artists who regularly draw Batman and other characters without paying fees or giving credit to DC. Yes, DC’s inaction has created an environment where people actually think it’s okay. Maybe, depending on the facts, the artist is unaware that DC disapproves of the fanart. And yes, many artists rely on DC’s inaction in forming their business model to draw and sell Batman sketches. Specific facts in a given case could change the analysis.

DC’s lack of response to unaffiliated artists may have created protection for those artists they would not otherwise have had. Their conduct, and the cases I’ve noted, also serves as a warning to up-and-coming artists. Both McClory and DeCarlo were freelance artists who contributed to the creation of what became a successful franchise. Neither enjoyed the rewards of that success because they waited too long. Most likely, the release of the Bond DVDs and the release of the Josie movie inspired the men to act. They sensed new money from their old ideas, and sought to get in on the pie. This is a cautionary tale to all other freelancers out there. Be vigilant about what you create. Even for a property you’ve licensed or contributed a portion to, keep on top of the uses. If you don’t like what’s happening, speak up, send emails, get a lawyer to write a cease and desist letter. Don’t wait for it to make money. You don’t have to sue to keep your rights alive, but you do have to demonstrate vigilance.

Last thought. Both DeCarlo and McClory were co-authors in the respective franchises. Co-authorship is the starting point for nearly all forms of copyright disputes. My next post will focus directly on co-authorship and what the individual artists can do to protect themselves.

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