Saturday, January 10, 2009

AALS: Art Law

Comic Art and the Law

Susan Scafidi, Fordham: She's interested in media that aren’t part of the traditional art world—quasi-outsider status and its effects on legal issues.

Ted Adams, IDW Publishing: Business approach to the law: spend as little money on legal as possible. Ideally: use consistent forms, for example when licensing creator-owned property.

IDW does Transformers, Dr. Who, CSI, and other big media properties, and thus doesn’t have leverage to require use of his own forms; he does have to use lawyers to check out those forms. From CBS’s perspective, it’s their boilerplate, nearly take it or leave it; ask for 15 changes, maybe get 3-5. The deal has a standard format: advance against a guaranteed royalty. Licensor wants as much upfront as possible, naturally. Royalty is paid on wholesale revenue ($1.60 of $3.99 cover price). No payment of royalty until the advance earns out, then paid royalties quarterly. At some point, if the guarantee hasn’t been reached, IDW has to cut a check for the rest. Has no in-house counsel.

Creator-driven titles are very different. As opposed to existing media properties with extant fanbases, unless the creator has a big built-in audience, the market opportunity is small. Comic shops are risk averse; they buy on a nonreturnable basis. IDW pays a page rate. IDW can also sell creator-driven material in other media. Because of its success, it’s swamped with possible content, and in the driver’s seat on the deal. Tries to sell feature rights, TV rights, etc.—sometimes to the same people it was licensing rights from, like CBS. With few exceptions, IDW wants business control though the creator gets to participate financially; the creator does not get to put the kibosh on a potential movie. IDW is represented by CAA in Hollywood.

Copyright/IP issues: They did a Transformers AU at the turn of the century in which Mark Twain appeared as a character; needed advice on any necessary rights. Likewise with comic book biographies of presidential candidates.

Jeff Trexler, Pace: Superman and corporate ethics.

Siegel & Shuster didn’t make much money off of their creation; the fact that they spent decades impoverished has been called comics’ original sin. They spent decades trying to get the Superman and Superboy rights back on various grounds, largely unsuccessfully, until last year when a court ruled that the Siegel heirs successfully reclaimed a share of the rights to Action Comics #1. Thousands of pages of court records.

Interesting tidbit: somebody else (Russell Keaton) drew a previously unpublished Superman origin story. In the 1970s, Siegel felt like a failure while DC was making millions; he sent a few pages to his daughter in hopes they’d be worth something. They were unpublished secret origins of Superman from 1934. There’s a picture of a little boy hugging a ship—but he is hugging a time machine, not a rocket machine—we’d screwed up the future Earth so badly that a scientist sent his son back in time.

By contract, Siegel & Shuster sold the character rights to Superman and agreed to a work for hire contract for future work, for $130. The popular story is that they couldn’t sell the story for years, and sold it because they were desperate. Siegel says they were given an offer in 1935, but didn’t sell it then because the real money seemed to be in newspaper comics, not comic books. Also, they didn’t trust the initial offeror. Detective Comics seemed more credible and fair later. They also (claimed they) thought that DC was only getting first serial rights.

Superman initially takes on bad businessmen and corrupt orphanage controllers. But he doesn’t make money off of superheroing; for that, he needs a day job. (Like many an artist?) Early on, in Action Comics #6, the Phony Superman, some slick comes in and claims to handle all the rights to Superman. Superman himself isn’t getting a nickel, and this theme of economic exploitation comes through a bunch of the comics. In about 10 years, they decide to challenge DC Comics’ ownership, and they lose spectacularly: they lose and their names are stripped from the books.

Changes later, as DC is shamed in the mid-70s: (1) The names get back on the book. (2) Even if an artist is doing work for hire, there’s a sense that the physical art is the artist’s. Claims to inherent right of the artist to get the art back—an “inalienable” right, now part of the standard contract. (3) Licensing rights are now well-known by creators. And this shows up in Action Comics in the 1980s when Superman gets a lawyer who handles his licensing and his tort liability. (That’s a flexible lawyer!)

Many complications in film rights/ownership. See the current Watchmen controversy.

Reflections on comics, art, and corporate ethics: (1) Art as something profoundly personal and creative: corporate practice should reflect the idea that comic art is profoundly personal (interesting to say this about Alex Ross, for example, who is working from Siegel and Shuster’s beginnings—I totally agree, by the way). (2) Art is representational and metaphysical, beyond physical laws, like Superman himself: it’s a profoundly human aspiration to go beyond our limits. Art’s liberation is its danger; like the corporation, art goes beyond what the human can do. (3) Art/comics are a time machine: we send things through time to each other. Our planet is in peril; we can’t send our kids back to the past, but we can plan for the future in terms of corporate responsibility.

Marc Greenberg, Golden Gate:

Comics, Courts and Controversy: The Cases of the Comic Book Legal Defense Fund

Intro note on “graphic novel” as controversial term, mainly used for marketing, but also helpful because it encompasses a broader range of material than traditional comics. A graphic novel is a sequential story told with both art and text. (See also $3.99 versus $19.95.) Another useful term: sampler, with excerpts from multiple stories.

Legend Comic Book Store in Rome, Georgia: Halloween 2004, a kid gets a 2-page excerpt from a graphic novel, The Salon, as part of a sampler. describes the storyline: modernists discover a stash of blue absinthe that allows drinkers to travel inside painters and may be a clue to the demonic force that’s been killing avant-gardists. One of the pages of the sampler features naked Picasso, having been interrupted while masturbating. There’s a lot of sexuality in the graphic novel, but the sampler just has 4 panels of nudity. The boy’s father filed a police complaint. The comic store owner, Lee, admits it was a goof; the sampler shouldn’t have been given to a 9-year-old. He was arrested and charged with distributing obscenity to a minor, possible sentence 21 years in prison.

CBLDF steps in to defend; the prosecution dismisses most of the counts. Then the prosecution dismisses the entire case, on the ground that it wasn’t the 9-year-old who got the book, but his 6-year-old brother. So they refile the case. Then the prosecution dismisses again, and refiles again. By now it’s Nov. 2007; CBLDF has found Lee has a prior conviction for selling to an adult, and files a motion in limine, which is granted. At trial, the prosecutor alludes to the conviction in the opening statement; mistrial granted. April 2008, prosecution gives up. $100,000 in defense costs.

New battle: Christopher Handley and the PROTECT Act; Handley faces criminal penalties for possessing manga. Some manga is pretty explicit. Handley is a collector who orders from Japan. Postal inspector has gotten a warrant, fearing obscenity, and they arrest him. 1200 books seized, along with 7 computers. CBLDF is a special consultant to the case. This is possession for personal use in his own home, which has profound implications for comic book collectors and avant-garde art enthusiasts in general.

Defense moves to dismiss, and court finds two sections of PROTECT Act unconstitutional because they don’t require an obscenity finding, whereas two sections do and can go to trial. What about Stanley v. Georgia, which says possession of obscene material in the home doesn’t violate the law? The court says there’s no defense because Handley is charged with receiving the material and he was arrested before he got home. How then do you get the protected material to your home? (My answer: you make it, obviously.)

Finally, a tax case: Paul Mavrides cocreates the Fabulous Furry Freak Brothers, and the Cal. Board of Equalization took the position that when he finished the panels of the comics and sent them to the publisher a commercial sale had taken place and he had to pay sales tax. He took the position that a writer sending a manuscript in wouldn’t be taxed; finally the Board agreed with him. That’s a preview of the CBLDF’s work.

My presentation:

Comic art is troublesome for courts because it is in many ways uncanny, boundary-crossing, which is related to its culturally fraught status. Comic art combines text and images, and courts have very different relationships to text than to images.

With texts, courts feel both expert and worshipful: text is transparent; courts have many tools to interpret it; and when it comes to free speech claims, courts are reluctant to condemn texts because, having a sense of how words operate, courts believe that words alone rarely do harm.

Thus in Whorley, the recent 4th Circuit child porn case, the dissenter objected that text-only emails shouldn’t be prosecutable as obscene because of First Amendment principles, but reasoned separately on the images, relying on statutory interpretation to exclude anime from the scope of the statute. The dissenter said, “[t]he ability to consider and transmit thoughts and ideas through the medium of the written word is an attribute unique to humans.” (Representational drawing, by contrast, is widely practiced in the animal world.)

To the dissenter, the text of the emails contained protected ideas, according to the dissent, but there was no sense that the images might have done so as well. “Imagining” and “fantasy” were words the dissent used about the texts, but those terms are equally applicable to drawings; giving them different levels of First Amendment protection needs some other justification. Visual art, I suspect, seems to many people be more than fantasy, closer to an act.

With images, courts are more deeply divided against themselves, because images do not readily translate into the kinds of manipulable words with which courts are so comfortable. So we see two reactions: first, treating images as mystical in their operation on human minds.

We think that images and words bear different relations to true reality. So, in McEwen, the Australian case about Simpsons porn, the judge concluded that “all persons depicted in written works are necessarily imaginary” because their images exist only in the reader’s mind, whereas an image can present an actual person or an imaginary one. This collapses images of people (whether on paper or in the viewer’s mind) into the real people themselves.

This magic-spell quality of images is a major component of obscenity law, but it’s also apparent in copyright discussions of substantial similarity. Substantial similarity in the visual field just is; there is no way to break it down or describe it. Similar things happen in music, but it seems that courts are much more willing to accept testimony about musical components than about visual components. And this is related to the second reaction: treating images as, fundamentally, less important than words, because their impact is gestalt-like, irreducible to words. Again, obscenity is a good example, but I think copyright’s willingness to tell artists to express themselves differently is also implicated here: there’s no sense that there is an expressive harm in telling an artist that s/he has to do something significantly different from Steinberg’s New Yorker’s eye view of the world.

Bringing it back to comics, I think comics make for hard cases because of the image/word conflict. They aren’t novels, so they don’t get understood as high-status and transparently meaningful. They aren’t pure visual art, so they don’t get the insulation of the transcendant power of nonverbal art. They are halfbreeds and they get treated as such, especially when a court is focused on the issue of profit.

Doe v. TCI is a terrible case in many ways, but what I want to focus on here is the way in which the Missouri SCt used the test it set out, which was: “If a product is being sold that predominantly exploits the commercial value of an individual's identity, that product should be held to violate the right of publicity and not be protected by the First Amendment.” And somehow the court found that Spawn was predominantly an exploitation of Tony Twist, even though he was a minor character. The court was implicitly defining a subset of Spawn as the product. Speculating, might have it been aided in this definition by an image of comics as not really art? The court referred neither to the plot of Spawn nor to its visuals, neither of which bear any relationship to Tony Twist the hockey player. Likewise, the analysis may have been complicated by the rise of transmedia storytelling in which the boundaries of a particular narrative are very hard to define, so the uncanniness of comic art may be the prototype for things to come.

Of course there’s a directly contradictory comics case, Winter v. DC, decided under California law using the transformativeness test. But is transformativeness a better test for comic art, or just a different test?

Let me contrast Doe v. TCI to a hypothetical I use in class: Brian Michael Bendis’s portrait of Woody Allen, which I use because Allen has won some significant right of publicity cases and also because it’s a standard portrait, done in charcoal, that seems therefore to fall right within the Saderup boundaries for what violates the right of publicity in California.
So, can Bendis sell his prints of Allen? Bendis makes a particular artistic claim: drawing Allen helps him understand Allen’s art. Should we defer to the visual artist on this point? I’d like to say we should, but I’m not at all confident that a court would. And if a court would, is it because Bendis has use words to explain his visual art, the way Jeff Koons finally did?

Another example of the way that mixed forms like comics distort legal analysis comes from McFarlane v. Gaiman: Mixed media get special treatment in joint authorship, favoring the user of words over the visual artist. Judge Posner was explicit that “mixed media” such as comic books and motion pictures were to be treated separately, because the “author/writer” figure might just tell the artist what to do in such an abstract way that his contribution wouldn’t be copyrightable alone, and then the artist might just comply in such a noncreative way that his contribution wouldn’t be copyrightable, but the result would be copyrightable and so that result would be silly. The “nature” of the comic book writer’s contribution is not copyrightable because the result is a joint product, comprising the contributions of the writer, the penciler, the inker and the colorist.

One wonders exactly what kind of motion picture or comic book Posner was imagining, entirely composed of scenes a faire components that together were more than that. In the specific case, there was no contention by anyone that the drawings were stock or otherwise uncopyrightable; if the artist had just done a painting of Cogliostro, it would have been copyrightable without any of Gaiman’s character-building behind it. Peter David might produce a full script for a comic book, but that doesn’t make Neil Gaiman’s suggestions to the artist copyrightable just because writers can make specific contributions.

Posner clearly distinguishes words and images, favoring the former in several ways. He distinguishes the Sam Spade case because “the description of a character in prose leaves much to the imagination, even when the description is detailed,” whereas that’s not true of visual images. Take a look at some images of Cogliostro—yeah, nothing left to the imagination there.

Posner says, ignoring generations of Star Trek and other audiovisual media fans, “A reader of unillustrated fiction completes the work in his mind; the reader of a comic book or the viewer of a movie is passive. That is why kids lose a lot when they don’t read fiction, even when the movies and television that they watch are aesthetically superior.”

So, Posner concludes, the stock character description provided by Gaiman became copyrightable when he was drawn and named and given speech. Gaiman’s contribution, however, made Cogliostro a character and not a drawing. Gaiman’s contributions were “quite equal” to McFarlane’s, according to Posner, even though they were just ideas. When there’s a conflict between words and artwork, words get priority, even when they’re stereotypical, just because they’re words.

Solutions? Possibly none, other than turning judges into art critics, which has problems of its own. We can’t expect the law to treat comics better than the culture at large does.

Lemley: What explains our different views of text and images? Is there a way to distinguish comics from more representational images (photos)?

Me: Not sure we can say—we can talk about brain scans, but I don’t think it gives us much help to say that the brain processes images differently. It’s cultural, and there are a lot of cultural anxieties about literacy bound up in things like Posner’s reaction.

Greenberg: The art world distrusts comics because they have text—consider it a lower form of art. (This gets to my uncanny/hybrid point.)

Ann Bartow: Consider how technology treats text and images differently. Computer screening for text is much more advanced than for images—screening for images often looks at the words surrounding the images to figure out whether to screen it out.

Trexler: recommends Barbara Stafford’s work on the philosophy of texts v. images. Reformation idea: use of icons by Catholic church was accused of manipulating people. Text was more intellectually trustworthy; images were for children. You still see this idea when comics are defended as gateway drugs to text.

Adams, in response to Q about whether transmedia licensing means that the derivative works right is justified as an incentive: Artists have been sophisticated about licensing across media for decades—Siegel & Shuster knew what they wanted; Bob Kane actually got it. When someone enters into a work for hire agreement to make a comic, they usually know what they’re doing.

My thought: Trexler emphasized the extent to which an artist is doing something intensely personal, whereas Adams emphasized the extent to which s/he is participating voluntarily in a larger business structure. These are both true, and we don’t have good ways to talk about the ways in which an X-Men fan can be producing personal art even though s/he didn’t create the characters.

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