Rather than protecting the author’s rights over her creations, copyright laws, both historically and as they stand at the moment, can also serve as means of decoupling the fruit of the labor from its creator. Especially when the creation results from a collaboration or as an work for hire. The superhero serves as a good case study of this.

The Red Cape

Childish and vulgar as he may be, the superhero is also one of the most profitable archetypes created in the XXth century. Nowadays the summer blockbuster is close to becoming synonymous with productions sprouted from Marvel or DC Comics and cheap special effects make TV a viable place for shows like The Arrow, The Flash, Agents of S.H.I.E.L.D. or Daredevil. Only, as opposed to, let’s say, Transformers, the superhero doesn’t exist simply because the Reagan administration deregulated morning cartoons, letting them be 20-minute commercials for toys, but has a more storied and author driven genesis. And it all started with lost fights over copyright.

In the ‘40s the comic book (not comics as a medium) was an emerging format, less reputable than the syndicated comic strip, home of shady deals and hack work. Most people who worked in it did so out of financial necessity or after failing to get their comics in the newspapers. This was the case of the two young men from Cleveland who created Superman.

After having their Superman strip rejected for years, Jerry Siegel and Joe Shuster ended up repurposing it for the comic book format and sold it to Detective Comics Inc. who published it in Action Comics #1. They got paid for it in bulk, handing the rights over Superman and getting the salary earned for some other stories, all with one check for $412. Using the paycheck as a contract for renouncing rights was a “trick” used in the industry to unburden the young or desperate of their creations. Most accepted because they were doing poor work and their characters were worthless anyway.

But this character proved to be immensely successful and readers were upset when he was nowhere to be found in Action Comics #2. For 10 years Siegel and Shuster wrote and drew Superman stories, as per an agreement with the publisher, and when the period expired they sued for the rights to be reverted. For this audacity National Comics (as DC was called at the time when Detective Comics Inc. merged with National Publications) sidelined them and removed their credits from the stories. Having been warned in advance of the authors’ intent, National had time to mount a legal defense and won the suit. The fight over Superman’s rights lasts to these days.

The Black Cape

With the success of the Superman character Detective Comics scrambled to publish more superheroes and so got their hands on what was to become the second most popular one: Batman. Long credited solely to Bob Kane, it transpired that he got this byline through backstabbing, lying, and undercutting his fellow authors.

His original proposal for “The Bat-man” was mostly the design of a blond man in a red suit with a winged contraption strapped on his back. Little in the way of backstory, plots or any of the distinctive features we associate with Batman today. Before pitching it to Detective Comics he showed this concept to the freelance writer Bill Finger who suggested a more subdued color palette, a cowl to distinguish him from Superman and other masked vigilantes and then proceeded to write the story, setting up Bruce Wayne’s identity as an orphaned millionaire playboy.

Kane drew the story, covering his technical failings using the popular method of swiping, then employing an ever increasing studio of uncredited artists. For years he contributed almost nothing neither to the character, nor the comic itself, trying to assume as much credit as possible for work that Bill Finger, and his own artistic assistants – Jerry Robinson, Dick Sprang and Sheldon Moldoff – were doing.

In 1946 Siegel and Shuster presumed that Kane was in a similar position to them and proposed to him a joint suit against National; instead he, allegedly, went over to National, warned them and in turn negotiated for himself a better deal on Batman (by lying that the original contract was void, since he signed it as a minor). The new contract awarded Kane a much better page-rate, but more importantly posited him as sole creator of Batman. He used this credit to gain fame and notoriety, furthering his fine arts career (also done by employing ghost artists) and getting book deals. Bill Finger died in poverty.

The Marvel Method

A strategy similar to Bob Kane’s was used with even greater success a few decades later by Stan Lee. As writer-editor for Marvel Comics (at the time formerly known as Timely comics) Lee devised a system of writing he called “The Marvel Method”. Comic books are usually written using what is called a “full script”. The writer breaks down the whole story, describing each page, each panel and writing the dialog beforehand; the artist is then left to illustrate the script. Being the only writer the company had available at the time, and pressed by other managerial tasks, Lee was forced to improvise. So, he gave the artists only the plot of the issue, leaving them to break it down in their own way, after which he would write (or rewrite) the dialog and narrative captions.

He did this with Jack Kirby for The Fantastic Four, Thor, The X-Men and The Avengers; Steve Ditko for Spider-Man and Doctor Strange; Bill Everett for Daredevil; Don Heck for Iron Man. Jack Kirby and Steve Ditko also did much design work on the characters. Comics being a visual medium, with much of the storytelling consisting in the images themselves, this opens all sorts of questions regarding authorship, especially when Kirby claims he never even received the sort of plot Lee professes to have delivered .

While neither Stan Lee, nor the artists retained any sort of copyright over the characters and concepts they co-created, Lee negotiated for himself much better conditions and even now he’s happily clowning and mugging to the camera in movies from which the other authors and their families see no financial gains – in some cases not even recognition.

The rights themselves have been gobbled up by bigger and bigger corporate fish ending from Cadence Industries to New World Pictures to MacAndrews & Forbes Holdings and lately to The Walt Disney Company.

A Popular Method

One could argue that these examples are the result of bad contracts and lack of foresight from the part of the various authors. With hindsight, with more informed creators and a more aware public such things should not be possible. Yet history repeats itself.

In 1992 seven high profile Marvel artists – Jim Lee, Todd McFarlane, Erik Larsen, Jim Valentino, Marc Silvestri, Rob Liefeld and Whilce Portacio – disenchanted with the corporate environment, with their lack of creative control over their work and insufficient remuneration, started their own publishing house: Image Comics. The founding principle behind Image was that the creator owned his work. And yet they quickly ended up emulating the very model they loudly rebelled against.

Marc Silvestri co-creates Witchblade and The Darkness. After a few issues he is not that involved in the development of the comics, yet the rights remain with his company, Top Cow. Writers and artists who, arguably, did much more for those properties are simply hired hands, while Silvestry benefits from their work and from licensed deals for TV shows, anime series and video games.

Jim Lee co-creates WildC.A.T.S. Stormwatch, Gen13 for his studio Wildstorm. He draws and co-writes a few issues of each, then drops the titles in the hands of other writers and artists who develop the concepts, sometimes in transformative ways. Going even stronger against the founding principle, in 1999 he sells the company, and the rights for all the characters, and all the characters other people introduced, to DC Comics, now owned by Time Warner.

But probably the most interesting case is that of Todd McFarlane and Spawn. Not necessarily because he worked the least on his comic. He did much more than some of his fellow rebels. But he was the one bitten back for trying to become “The Man” in his own way. Recognizing his own limitations as a writer, he quickly employed some of the most popular comics writers at the time to pen down a few stories in the Spawn universe.

Grant Morrison, Alan Moore and Frank Miller wrote a few throwaway issues that enriched the world and the characters only in the slightest. Dave Sim produced what amounted to be a manifesto for creator owned comics. But Neil Gaiman created new characters, who will be featured prominently in the Spawn MTV cartoon and live-action movie, and gave the series a sense of purpose and mythology. For a few years McFarlane payed Gaiman the royalties he owned, but then stopped, believing himself the only owner. Gaiman then drew McFarlane in court through a series of lawsuits that lasted up to 2012 when they settled. In 2013 Gaiman gave Angela, one of the characters he co-created, to the company McFarlane ran from: Marvel Comics.

The Lone Superhero Copyright

These aren’t isolated cases. And hardly the only ones. But I don’t think they arise purely from malice. Unlike the characters I wrote about, these are real, common people working in entertainment, wanting to please their audience and make a living. What’s most at fault is the “winner takes all” mentality that copyright laws inspire because of the way they treat creation. Rather than a process, the law sees it as a single and discrete act, without acknowledging contributions and influences.

Instead of accepting that creative work can have varied and unpredictable results, the law asks authors to consider at the moment of drafting a contract how impactfull their creations will be. Then leaves them at the mercy of corporate entities should they have miscalculated. The more desperate, disenfranchised or momentarily disinterested in pecuniary gains is the author, the more vulnerable he is. And as we’ve seen there is no trickling down of rights, but rather a constant consolidation up top where media giants like Disney and Time Warner gain more and more properties, hence more and more power to coerce under the pretense of negotiation, to demand from authors, and to affect copyright laws to suit their needs.

When the copyright itself becomes a commodity to be bought and traded independent of the artistic work, it hardly seems that it achieves protection for the authors or that it fosters artistic diversity.

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