Wednesday, February 15, 2012

The Gary Friedrich Situation: Of Corporate Ethics, Intellectual Property, and Contract Law

Karen: As I am sure many of you have heard by now, former Marvel Comics writer Gary Friedrich had sued Marvel claiming he had ownership rights to Ghost Rider. Friedrich has been successfully counter-sued by Marvel/Disney, who are now seeking $17,000 from Friedrich; the writer is reportedly destitute. Comics Beat published an article which explains the situation pretty well.

Doug: One of the issues involved is Friedrich's sale of Ghost Rider/Marvel related goods at conventions and appearances. Marvel/Disney is hacked off that Friedrich has been able to make a buck (regardless of how modest his income would be in relation to the multi-million dollar empire that is Marvel Comics) selling items to which he has no legal title.
Karen: The question of who actually created the Ghost Rider character has been much debated in the past. It seems clear that Friedrich, artist Mike Ploog, and editor Roy Thomas all had a hand in it. But of course, they did it during the work for hire era, and technically none of them own the character. However, regardless of that, Marvel's action in demanding $17,000 from Friedrich seems not only petty but incredibly stupid. That sum is nothing to them, and everything to Friedrich. I can only conclude that Marvel is doing this to send a message to other artists and writers out there, to prevent any further suits.

Doug: Of course Marvel's much larger, and more public, litigation is against the Kirby estate.

Karen: But the legal department should have spoken to the PR group first. Here they have three Marvel films coming out this year, and now they are faced with bad publicity, to the extent that people are calling for boycotts. Dumb move, particularly in the time of the 99% vs. the 1%. Marvel comes off as just another greedy corporation, wringing blood from the poor worker.

Karen: I can only hope that someone at Marvel will show both business sense and some ethics and say, "Let's drop this thing." It should be enough for them that Friedrich not only lost his suit, but cannot sell anything with a Marvel character on it. Don't grind the man into the dirt too.

Doug: When I read creator biographies that talk about the writers and artists taking on book after book, and how to them it was just a job... This just sounds like that. These guys were trying to put bread on their tables; that there would ever be royalties or profit-sharing wasn't even on their radar screens, so they did their jobs with pride and hoped that they'd get another assignment. Neal Adams worked diligently to change these conditions. In the midst of all of this, the anecdote that Roy Thomas really didn't create any substantial characters while at Marvel -- he often re-tooled existing properties -- seems to make sense. Roy knew that anything he did that might "take off" would be owned by "The Man" (and I don't mean Stan). To a degree, this seems an awful lot like the Siegel and Shuster mess at DC.

Doug: On the other hand, all of these creators did sign contracts...


david_b said...

This argument exists on many levels.. How did artists 50yrs ago know their product would be on Underwoos at Target and movie screens everywhere..? Same for Hollywood scriptwriters, songwriters, you name it. There weren't unions for comic artists back then. Legitimacy and safeguards of today's comic creators were unfortunately built on the short-sightedness of 40yrs ago..

Obviously, major corporations are built on legal and binding contracts, else they have no leverage to make more investments, such as more movies, merchandising, etc.

This is the moment that a huge PR action is due for folks like Friedrich to be recognized and esteemed, before they pass on. Forgive me for offending anyone, but you currently have all these corporate 20/30-somethings getting income based on the creation of artists now rendered poor and intimidated by corporate legal henchmen. Granted, some have squandered away their retirements but these studios are run by fat-cats. How will a 1% cut of net profits to the creators hurt them..? Obviously, as I noted a few weeks ago, you had a few folks involved with the creation of Ghost Rider, so legally, who get's more share than who..? Was the change by Roy Thomas two years later making the character more successful held as valuable as the original creator..?

If the studios are smug on making huge profits, can't they be held to create some construct of royalty recognition which identifies creators..?

Yes, I understand it's the way society works, but I've been inspired in recognizing that we're better than that. And I'll stand with any movie protest group that supports Friedrich and other artists not adequately compensated, despite contracts signed to the contrary 40 years ago.

Anonymous said...

Hi Karen, Hi Doug,

A good and interesting topic, thanks. But, as you say, a hard one.

My first thought is that we live in two different worlds: (1) The Timely world where this all started, with Stan as the only full time employee, permanently on the brink of collapse and at the mercy of distribution companies and their own competitors, with artists & writers literally, as you say Doug, trying to feed and clothe the kids and doing all kinds of other commercial art, cartoons, graphic design and anything they could, hand to mouth. (2) Marvel now, the highest grossing brand of all time, purchased for $4bn by Disney, and constantly the subject of multi-million dollar legal disputes. The 1997 debacle was astonishing. According to Rozanski, Perelman made $400m from that situation. According to Forbes, he made nothing. So who knows what’s going on? Either way, he coughed up $80m for the trustees and shareholders (whilst still denying any wrong doing).

I’m still amazed to see Stan popping up in the movies, considering that they had to pay him $10m to drop his multiple lawsuits in 2005 and he then sued them again for a cool $1bn. Stan has come a long way from the place where he was the sole employee working out of...what was it? a cupboard? A disused elevator?

So when we consider something like the Gary Friedrich case, it’s hard to reconcile that writers/artists created these characters for a company that was worth nothing and is now worth billions. They were paid very little at the time, but it was a fair slice of the then very low returns. Now the characters are worth it fair that they have no share of that?

According to Thomas, Friedrich invented the name and concept of a demonic motorcyclist, Thomas gave him the skull head and Ploog put the flames on. Friedrich says it was all his idea. According to Ploog, who remembers?

The immediate temptation is to feel very sorry for Gary, but two things are not immediately apparent: (1) he was a childhood friend of Roy Thomas who was given an opportunity at Marvel that any of us would have killed for. He could have been Thomas successor as writer on all of the main titles if he his stuff had been better and if he hadn’t had such a love affair with the bottle (2) he specifically signed away his rights to GR in 1978.

Ultimately, I come down squarely with Karen. I can’t see how the judge could have done anything but find for Marvel, but for them to screw him for what is chump change to them, when he may lose his house over it is just petty, vindictive and beneath them. They may want to send a message to other writers, but the message has been well and truly sent by the courts.

You have all the power, Marvel. And with great power....?


Karen said...

I would really love to see all the old guard creators compensated now for those characters who have brought Marvel so much money. But it isn't as easy as we'd like it to be. When I interview these guys now, 40+ years after the fact, most of them don't remember the details of who did what or thought up what. Who can fault them? I can hardly remember what I did last month. So figuring out who did what and is owed what is complicated.

But it would be nice to see Marvel acknowledge some of these guys with even a token amount of money. But looking at it from Marvel's side, if they say, gave Gary Friedrich a sum, then is Tony Isabella going to come knocking? Arvell Jones? J.M DeMatteis? Keith Pollard? Michael Golden? And all the countless others who worked for Marvel.

Sadly none of these men could have known that their work would lead to million dollar movies 40 years hence.Heck, from what most of them say, they didn't expect anyone to remember their work ten years later! And I don;t think Marvel back in the 60s or early 70s had any idea they would go on to become such an iconic company and last so long. Everyone was just doing their job and trying to get by.

So it's a sad situation. But Marvel is only making it worse with this vindictive countersuit. Friedrich has already been cut out of the action on Ghost Rider, and he can't sell any Marvel items at cons; that should be enough. I think most of the creators of his era have seen what has happened to him (and the Kirby suit) and have probably decided it's not in their best interests to go after a piece of the Marvel pie. SO why destroy Friedrich? Let it go Marvel.

david_b said...

Totally agreed with you both.

"Would it really hurt Disney to throw these creators a financial bone..?", or at least keep them adequately appreciated..?

I agree totally with Karen, as the Mouse is only making everything worse.

Anonymous said...

I will gladly support any boycott of Marvel and/or Disney, although that is no big sacrifice since I don't buy new comics or go to movies anymore anyway (because over 90% of the stuff being produced these days is crap).

Inkstained Wretch said...

I agree with the general consensus here. This whole situation is sad and depressing. But a major reason for that is that Friedrich didn't assert his rights to the character when it really counted.

Part of the problem is the nature of copyright law itself. My understanding of the law is it basically obliges the owner to zealously defend against any and all possible infringements or run the risk of losing the copyright itself.

I'm a journalist who covers business and politics. A few years ago, I wrote about a case where the lawyer for the Praire Home Companion's Garrison Keillor sent a cease and desist letter to a guy who was selling "Praire Ho Companion" t-shirts online (He told had sold about 50). More recently I did an article on how the Susan G. Komen for the Cure foundation did the same thing to another anti-cancer group that was having a "Kite for the Cure" event. (Komen has copyrighted the phrase "Race for the Cure")

In each case the lawyers said they had to threaten legal action because legally inaction could be used as proof to challenge the ownership of the copyright.

(The funny part for me about the Keillor case -- aside from the fact that he is usually a critic of this type of corporatism -- was that his lawyer asserted in the papers for the case that the "Praire Ho Companion" t-shirts would create "confusion" among Keillor's fans over whether this was official Praire Home Companion merchandise. In other words he was calling Keillor's own fans too dumb to spot an obvious parody.)

In a perfect world, the company would realize that the initial creator, even if he or she did sign over the rights to the character, deserves some kind of recognition -- a minor carve-out in the copyright to allow them to enjoy some fruits of their labors.

But then we don't live in a perfect world, do we?

Regarding the upcoming Ghost Rider film, I wasn't planning on seeing it anywaty because the first was so godawful awful. Now, I've got another reason to avoid it.

Anonymous said...

Inkstained...I...I...I quite liked the Ghost Rider movie? There, I said it.

I'll get my coat.


Anonymous said...

Hi Karen – I just re-read your post and thought, actually, the Ghost Rider is almost unique. He’s a character in the Super hero mold created in the 70’s who is still around and making money. And how many of those are there?

First, take away everyone created by the originals: (Stan, Jack, Roy, JB, Ditko, Romita, Wally Wood, Bill Everett, etc). That knocks out FF, Spidey, the original Avengers, (plus Cap, Thor, Iron Man, Hank & Jan separately), Pietro, Wanda, Hawkeye, Vision, The Panther, the Inhumans, DD, Doc Strange, Hulk, Subby, the original Xmen, Fury (past & present), Black Widow, Kazar AND MOST OF THEIR KEY FOES.

Then take away all the stuff that was produced under license: Conan, Red Sonja, Kull, Solomon Kane, John Carter, Tarzan, Rom, Micronauts, Godzilla, Drac, Frankie, Star Wars, Battlestar Galactica, Planet of the Apes,etc.

Next, well, we talk a lot about Star Wars and the DC Implosion, but the thing that really made Marvel the market leader in the 70’s was the huge amount of reprints they put out: so no original material there.

Who does that leave to possibly come after Marvel?

She Hulk was Stan, Killraven was Roy but effectively HG Welles, Iron Fist, Morbius & Warlock were also Roy, Englehart & Starlin for Shang Chi although all the backing characters were licensed, Byrne’s Alpha Flight and Claremont/Simonson’s New Mutants both came in the 80’s, so tighter control, Spider Woman was invented by Stan to protect the copyright….

So who DOES it leave?

Son of Satan is Friedrich again, I guess? Conway for the Punisher? Marv Wolfman for Blade? Buckler for Deathlok? Len Wien for Man Thing? Archie Goodwin for Luke Cage? Claremont for Sabretooth? Gerber for Howard the Duck…well, we know about that one, right?

Basically, unless we’re talking about anything with an X in front of it….what ARE we talking about?

I think they could easily afford to throw GF a few crumbs without opening the floodgates.


Anonymous said...

"Corporate Ethics" is an oxymoron, like "jumbo shrimp," "guest host," and "Microsoft Works."

Rip Jagger said...

I'm convinced that this hard line about up-to-now overlooked sales at conventions is the result of Disney getting hold of Marvel. Disney has always had a take-no-prisoners approach to trademark infringement and that seems to be the reason for the demand that Friedrich cough up money he made selling Ghost Rider stuff. It's legally necessary perhaps but it's a publicity nightmare for companies that want to be fan friendly as much as possible.

I've already made the call not to see Ghost Rider in support of Friedrich. Whatever the legality of the situation, it's a damn shame that a corporation like Marvel continues to dump on the guys who built the empire.

When I think of the work that Stan used to throw at Bill Everett and his ilk to keep them solvent in times of stress out of a sense of loyalty to guys who were important to the company, it's a pity and shame that some of Lee's largesse can't find its way into the new "House of Ideas".

Rip Off

Doug said...

Rip --

That's a fantastic point about Stan's generosity. You can add Jerry Siegel and Win Mortimer, among others, to the list.

And the whole stink over the return of original art is a fiasco for another time -- reprehensible. The story (I'm not in any way claiming truth to it -- just spreading malicious rumors I suppose) that while Kirby battled Marvel for his own output while Gil Kane was seen leaving the offices (unauthorized) with a sizable stack of said artwork (Kirby's) under his arm dovetails nicely with today's topic.


Inkstained Wretch said...

Doug's comment got me thinking: Was there ever bad blood between Kane and Kirby? I read Ronin Ro's Tales to Astonish and I remember being taken aback by a quote from Kane dissing Krby. It was something to the effect that Kirby always knuckled under when Stan Lee told him to do something.

Doug said...

And Inkstained, I'm wracking my brain to recall where I saw the anecdote I reported above. It may have been in Ro's book, which I disdain for it's lack of citation -- sort of like what I just did!


Anonymous said...

Contracts are "legal and binding" when they benefit the fat cats (the incompetent CEO can't be fired, so they have to pay him millions to get him to resign; or the inventor gets a pittance while the suits make millions off of his creation). When a contract would benefit the workers (providing a living wage, or preventing unnecessary downsizing), then contracts are made to be broken.

Fred W. Hill said...

Sad but far too true, Anonymous. As for the Friedrich case, from a strictly legal standpoint, he's up the creek without a paddle, although from a public relations standpoint Marvel is being an all too typically craven, evil corporation. To be honest, I grew disillusioned with Marvel not only over how they treated Gerber & Kirby, among so many others, but even moreso when they sued Dave Stevens over his entirely original Rocketeer character simply because the name was similar to that of a group of villains who appeared once, and briefly at that, in an issue of Daredevil written by Marv Wolfman. Pretty disgusting.
By the way, although the Ghost Rider was an entirely new character, he was really a mix of a western character of the same name created during the Atlas era and the Timely era Blazing Skull character, with a huge dollap of Evel Kneivel and inspiration from The Exorcist.
Anyhow, I can perfectly understand why most over the last few of decades, comics writers and artists may play with the old big 2 characters while they're attempting to make names for themselves, but when they'll save any genuinely new character concepts for indies that will give them full ownership rights or get a contract with Marvel or DC giving them ownership rights. Modern creators have benefitted from the hard breaks of their predecessors.

Anonymous said...

If Marvel wanted to get into a lawsuit over the Rocketeer, DC had a gang of villains by that name in a Batman story in 1965. And Moon Knight had a lot of similarity to Batman, the Punisher was an obvious copy of the Executioner, and you might even make a case that the original (Western) Ghost Rider was an imitation of Zorro or the Lone Ranger.

Anthony said...

Marvel is in the right legally because Ghost Rider was done as work for hire and their countersuit was necessary to protect their copyright. I would be surprised if Marvel attempts to collect the judgement although they may attempt to claim one dollar to make it legally binding.

You also have to remember it cost Marvel hundreds of thousands of dollars to defend against these lawsuits. It may seem like a small amount against the millions Disney is now raking in on merchandising because that is where the big money lies but it does add up.( It would be money better spent on
compensating these creator before the lawsuits happen but I'll get to that later. )

There is also the matter mentioned here and elsewhere ( Jim Shooter talked about this yesterday. ) of who exactly created Ghost Rider.
It's pretty obvious that Gary is not the sole creator. But even if he was Ghost Rider is not a wholly original character. Gary basically dusted off and revamped his Hell-Rider character from Skywald and named him after the western hero Ghost Rider. Roy Thomas added the skull and Ploog or Gary added the flames. Personally I think Roy added a little more. It would be just like him to reach into Marvel's past and use a character like the Blazing Skull for the look of the Ghost Rider. Surely he remembered using him in Avengers 97.

Despite all that a new and memorable character was created. Few characters are created that are wholly original or at least not in some way inspired by what came before. I do think it is unfair when people say that if someone wanted to own their characters they shouldn't have worked for Marvel or DC. People needed to make a living and Marvel and DC were pretty much it back then. Companies like Charlton were on the way out. No Image, Darkhorse, etc. back then. Just imagine for a second if all these people had stifled their creative impulses for fear of losing control of their creations. Would we even have a Bronze Age Of Comics ? In most cases the talent that is now treated with such disdain help the House Of Ideas continue and grow into what it is today. Attractive and lucrative enough to be gobbled up by the House Of Mouse.

Even though I think Marvel was legally in the right I do feel some compensation is due those creators who helped lay or reinforce the foundations of Marvel Comics. I think the legal minds at Marvel / Disney are smart enough to compensate creators without opening any floodgates. Anyone involved in the creation of a character should be compensated for that even if it is a one time payment while Marvel would retain copyright. Anyone would made contribution other than creation would continue to be compensated by royalties from the reprinted material in print or digital form. Those whose contributed before the royalties were in place should be included. Again while Marvel is not legally bond to do such things it would be a more positive expenditure of money than defending themselves in countless lawsuits. It would be a gesture of goodwill toward creators and might allow them to attract a new pool of talent who otherwise would sell their wares elsewhere. At the very least it is positive publicity for a big corporation whose benefits could far outweigh the expenditure.

Marvel 70's fan4ever said...

I have to agree. The money Disney is spending to fight Gary Friedrich is much more than the $17,00 they are going to get from him. Who is going to go to Marvel or DC and create anything original after reading how they drove Gary into poverty and homelessness?

If Disney thinks they are sending a message for people not to sue, it's going to have an opposite effect. For the money Disney is spending to fight him, they could help him with medical bills and build better public relations.

Marvel 70's fan4ever said...

Another thing I have seen on message boards was the fact that DVD's were never created back in 1973. Doesn't Gary have a right to fight for residuals on the DVD's? That was never in his contract because it didn't exist back then.

I have been on the Marvel site and they are offering for free a 70's Digital Iron man Marvel comic to read that is written by Gary. Again the internet didn't exist back then. Isn't there a loophole in the law that would allow him to benefit from media that didn't exist back in 1973?

Anonymous said...

Absolute power corrupts absolutely...

Doug said...

Does anyone know of attempts by cartoonists to unionize? I am not aware of any Association that represented comic book artists.

What about the cartoon houses -- Warner Bros., Disney, Rankin-Bass, Hanna-Babera. Did creators there have any sort of royalties or profit-sharing provisions for their creations, or was that all work-for-hire as well?


Karen said...

I agree with Anthony that people who say that comic artists or writers should have not worked for Marvel or DC if they wanted to do their own characters are being very unrealistic. The work for hire system was ingrained. There were no other options, and besides, none of them had any inkling that the material they created would ever be a hot licensing item.

Doug, I believe Neal Adams tried to create a union out of the old Academy of Comic Book Artists, and it kind of teed Stan Lee off. Can't recall exactly where I read that but it comes to mind. If I have time later I will look it up.

Anonymous said...

So we're supposed to feel sorry for Gary Friedrich because he sued for profits he was not entitled to for a character he never owned? He should be suing his attorney for malpractice.

I know it's popular to believe corporations are evil and greedy and they should give "poor Gary" a waiver on money he owes them, but in fact it was Mr. Friedrich's greed that got him into this situation.

It's very easy to talk about giving away someone else's money. If you feel bad for Gary Friedrich, why not erite him a check from your account to help him out? Let's see who volunteers when it comes to your own money.

As for bad PR, the general public has never hearf of Gary Friedrich and isn't likely to boycott a film on his behalf.

Ghost Rider sucks anyway.

Anonymous said...

1. "A business that makes nothing but money is a poor business."-Henry Ford 2. "The superior person understands rightness. The inferior person understands profit."-Confucius 3. "The man who has millions will want everything he can lay his hands on and then raise his voice against the poor devil who wants ten cents more a day."-Samuel Gompers

Anonymous said...

" I know it's popular to believe corporations are evil and greedy"

You're absolutely right, my friend,. The company I work for was started by two nice, old families.

Unfortunately, it was the Bushes and the Bin Ladens.


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