'Blog Post

Intellectual Property (2 of 3)

Who owns the comics? There’s a coherent case to be made that creators own what they create. We plan to make that case.


Intellectual Property (2 of 3)
Wed April 27, 2016
Who owns the comics? There’s a coherent case to be made that creators own what they create. We plan to make that case.

Let’s talk about “works made for hire,” shall we?

This is intellectual property owned by some person or institution other than the person or persons who conceived and created it. I had a friend who worked for Raytheon Corporation years ago as an engineer. Anything he invented – whether he did it at work using company facilities or not – belonged to Raytheon because, according to his employment agreement with the company, he actually was a company asset as long as he was on the payroll. At the end of each year Raytheon sponsored a big dinner for all the inventors of stuff that Raytheon patented in the course of the previous year, where each inventor got a very nice plaque, a good meal and the thanks of a grateful company.

That is intellectual property that can be patented. This notion was extended to material that is not patented but copyrighted. In the United States, the federal Copyright Office has a clear and simple set of guidelines that define when and whether a written or illustrated work is considered to be work for hire. If a work is created (a) within the scope of a person’s employment by a company or person or (b) is specifically ordered or commissioned by a company that copyrights it. In the first case, it’s clear whether a person is an employee collecting income on a regular basis and has employment benefits as prescribed under American law. The second case gets dicey, however, and the Copyright Office specified nine circumstances under which a commissioned work can be defined as work for hire.

The commissioned work must be:

  1. a contribution to a collective work,
  2. part of a motion picture or other audiovisual work,
  3. a translation,
  4. a supplementary work,
  5. a compilation,
  6. an instructional text,
  7. a test,
  8. answer material for a test, OR
  9. an atlas.
AND the parties to this commissioned work must agree in writing that the work will be considered a work made for hire.

It seems clear that comic book stories produced for periodical comic books or limited series do not fit, as a rule, into any of these categories.

This is what the law school at Columbia University, one of my alma maters, also says:

If the commissioned work does not fall into one of these categories, it is NOT a work for hire, no matter what your contract says, and you still start out with all the rights. (Unfortunately, some contracts contain clauses broadly asserting that the work is for hire, even when there is little or no basis for that characterization.)
So what does that mean for comics and comics characters and concepts?

Most comics creators have traditionally been freelance writers and artists not employed by the companies who publish their stories. I was never, for example, an employee of a major comic book publisher except when I served as an editor. And under a doctrine instituted at DC Comics since the nineteen eighties, editors were not to be writers or artists on the publications connected with their employment. Any freelance work that an editor or staff member did was specifically kept at arm’s length from his or her employment. Generally, however, such freelance work is defined by the publisher as work made for hire whether the creator is or is not also an employee of the company.

With the advent of the current copyright law, on January 1 1978, comic book publishers have tried to make a point of including individual “work for hire” contracts with each published work. Sometimes they did and sometimes they didn’t, but before 1978 there were no such written agreements and publishers attempted to define work as made-for-hire only on an informal, verbally understood basis.

So what does this mean for the characters, concepts and stories created by individual freelance writers before and after 1978? We will deal with that in a separate posting in a few days.

Brian K Morris
Wed Apr 27 2016
7:27 PM
While I have no horse in this particular race, as a writer, I find copyright/trademark issues fascinating. I'd be interested in reading what DC (or any company you worked for) might have said about this issue if/when you brought it up to them.

And might there be a way to resolve the issue outside of taking one of the corporate monoliths to court (and having them bleed their attacker dry via legal billable hours)?

I'm bookmarking this column. :)

Tom Alfera
Fri Apr 29 2016
9:01 AM
1. And the burden for proving ownership is further made dicey vis a vis how in the world does one prove original authorship of said character, plot, story arch, etc?

2. Could not [un]said corporate monolith argue that ANYTHING ending up in a comic book is a "contribution to a collective work?

I. too, shall be very interested to see how this story unfolds.

Elliot S! Maggin
Fri Apr 29 2016
10:59 AM
Hi Tom.

Of the nine qualifications the "collective work" seems to be the only one that could be construed to apply to comics, but the definition according to the current copyright law is pretty specific. It goes like this:

A collective work is a work, such as a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole.
Obviously it doesn't refer to the range of all the stories in a character's backlist, but only those appearing in a specific publication, like a reprint book. Multiple stories occasionally appear in a single comic book issue, but that would be a difficult idea to support. Certainly this would not govern a single issue containing two stories by the same person (see Superman #416 where I first established Lexcorp, for example).

As far as proving authorship, most of this stuff has clear credits appended to each story including the writer and artists - and often including the editor, colorist and letterer as well. Seems a pretty strong case that this doesn't refer to comics stories when they are originally published.

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