By Jeffrey E. Jacobson, Esq.
Do you want to create a new superhero? Do you dream about a job in the majors? Did you ever think, or even guess, no less speculate, that once you had both, you still would not own the rights to your creation? One of the most important concepts of copyright law regarding comics, and one which could affect your career choice, is the doctrine of “work for hire.”
Last year, I wrote here about the basics of Copyrights and Trademarks; let us proceed here to investigate the demon seed of copyright law: works “made for hire.” Well. . . budding comic pros here is what you should be aware of and what to avoid when getting into a “work for hire” situation. If you are a creative artist — writing or drawing stories, coloring our beloved comic books, or even adding ornate or stylistic lettering — then you must know your copyRIGHTS! In the past, there have been revolutions by the artistic talent at some major comics companies which can be attributed to “work for hire.” This is a leading-edge issue and frequently a hotly debated topic among the top people in this industry.
Generally, an artist or writer owns the copyright in their work at the moment their idea is expressed in a tangible form (for example, drawn on paper). The artist or writer may then transfer ownership of the copyright to other parties. In a work-for-hire situation, the creator, being the actual artist or writer, is employed by a company which, for the purposes of copyright, is deemed the “author” from the moment of creation. This legal fiction (another lawyer gimmick) arises when artists or writers are hired by a company to perform certain specific jobs. These “employees” make their creations under the “direct supervision and control” of their employer. In this manner, from the moment of creation, a creator has no ownership or control of the work. This is essentially how Warner Communications (parent company of D.C. Comics) ended up with the rights to Batman.
There have been changes in the comics industry with respect to work for hire and artists’ ownership of their work. An example of such change can be seen in the formation of Image Comics in 1992. Image was founded by six artists from Marvel Comics in response to the “. . . work-for-hire system under which Marvel worked, where an artist could create a character but have no control over the fate of that character.” They all yelped about being extorted by Marvel. Each founding member created his own studio to produce his own comic books. “This ensured that each creator could fully own and control his characters and determine their destinies,” writes Jim Lee’s WildStorm Productions. However, industry insiders and veterans contend that only the founders enjoy this broad creative control and, the founders have started to utilize the work for hire system just like their former employers. This is an interesting example of how powers can change. Creators have also pointed out that sometimes there is no big wealth in owning your own creation.
John Byrne, who has been in the comics business since 1974 with work-for-hire projects for the majors as well as his own Next Men on Dark Horse Comics, believes that the work-for-hire situation has vastly improved. Byrne, who currently does Wonder Woman, cautioned that although work-for-hire “. . .is painted as the great Satan of the industry, I don’t see it that way. But you have to know what is involved. . . .” I was reminded of his work on the Fantastic Four while he was explaining that “. . .the great Satan. . .” is not really all that horrible. He explained that when he is involved in a project with a character that has been around for a long time, such as Wonder Woman or the Fantastic Four, he has no expectation of owning any rights in his work. He will receive the original art work back and this original art work goes to galleries for sale. But, Byrne knows he will not own the copyright — just the physical works. This is a very real expectation, and the work for hire agreement is no surprise.
Many of the creators I’ve spoken to seem to indicate that you will certainly know ahead of time whether an assignment is expected to be a work for hire. Then, they loudly proclaim that you can decide the importance of having a roof over your head that month. Perhaps if an artist is hired for his or her creative abilities, he or she could theoretically avoid giving up the copyright in a commissioned creative work.
In essence, a work for hire mandates that the party for whom the work was prepared is considered the employer, and thereby the author as well, owning all of the rights included in the copyright. This type of a legal arrangement must be expressly agreed to by both parties in a signed written agreement (generally the employment contract). Such a situation, legally, is supposed to be established prior to creating the work. Otherwise, how could it be created under the employer’s direct supervision and control?
In addition, a commissioning party (usually the hiring company) will be considered the author and copyright owner of the work from its creation if the work is specifically ordered or commissioned for use in one of the following manners: as a contribution to a collective work (meaning a collection of stuff), part of a motion picture or other audiovisual work (movies), a translation, a supplementary work, a compilation, an instructional text, a test, answer materials for a test, or an atlas. In these specific situations, you should be aware that the hiring party generally intends to and will retain all rights, including the copyright, in the commissioned work.
I am reminded of the tale of making a full length animated film. Under copyright law in most of the civilized world, the artist or writer obtains copyright upon creation. As soon as the idea is expressed in a tangible form or medium, then the copyright exists in that specific expression. If each artist working on the full-length cartoon owns the copyright to his or her contribution, then the film would be copyrighted by many, many, many people. This is burdensome on industry as well as unrealistic to manage. Consequently, since each illustrator is preparing their contributions under the direct supervision and control of the studio, then pursuant to a written “work for hire” agreement, that copyright belongs to the film maker (usually the movie studio).
Bob Fingerman has signed the “. . .dreaded WFH contract (for Marvel, Archie, Dark Horse and others). . .” as well as enjoyed his own creative and ownership control on his book Minimum Wage. He stresses that he feels no one does this with a smile, but it’s a matter of economics. Frequently, he finds some companies that he’s striving to work for won’t budge. You have a choice of adhering to the work for hire system or going elsewhere. The creator’s bread can be buttered by work for hire in addition to creator owned and controlled projects.
Of course, it is important for any agreement with regard to the ownership of rights to be in writing. Freelance artists of any kind, in all media, must be aware of agreements which may contain the specific language that would indicate that the creative product would be considered a work-for-hire. These clauses, when signed by the creative person, will cause copyright ownership to be granted to the employer immediately upon creation of the work. These clauses are in all the agreements coming out of D.C., Marvel, Milestone, etc. Here are two average examples:
The Artwork created hereunder has been specially commissioned by “Big Comic Company” for use as a contribution to a collective work, and constitutes a work made for hire as that term is used in the United States Copyright Act of 1976. Artist acknowledges that he or she has entered this agreement before commencing performance of the services he or she has been engaged to perform hereunder. In the event the Artwork is deemed not to be a work made for hire, then Artist hereby assigns all rights in the Artwork, effective as of the date of creation of such Artwork, including copyright and trademark rights, and all other rights to exploit the Artwork to Big Comic Company, in all media now or hereafter existing, throughout the world in perpetuity. Upon Big Comic Company’s request, Artist shall execute any additional documents necessary to evidence this assignment. Big Comic Company shall also have the right, but not the obligation, to use Artist’s name, likeness and biographical information in connection with the Artwork and/or Big Comic Company in general.
Writer acknowledges that he or she has entered into this agreement before commencing the performance of the services he or she has been engaged to perform hereunder. In the event the Work is deemed not to be a work made for hire, then Writer hereby assigns to “Close to Big Comic Company” all the rights in the Work, including copyright and trademark rights and all other rights to exploit the Work in all media now and hereafter existing throughout the world in perpetuity. Upon Close to Big Comic Company’s request, Writer shall execute any additional documents necessary to evidence this assignment provided any such documents shall not require writer to assign any rights other than the rights assigned hereunder. Close to Big Comic Company shall have the right, but not the obligation, to use and to permit others to use Writer’s name, likeness and biographical information in connection with the Work, and the advertising, publicity and promotion thereof. Writer acknowledges that the Work shall be derivative of preexisting material including without limitation, the names and pictorial and literary representations of fictional characters, companies, places and things (the “Preexisting Material”); that Close to Big Comic Company owns or otherwise has rights in the Preexisting Material; and that Writer would be unable to produce the Work without the Preexisting Material. Writer further acknowledges that he or she shall not have, acquire or claim any right whatsoever in any of the Preexisting Material or the Work and shall not have the right or privilege to use any of the Preexisting material or the Work except as provided herein or as Close to Big Comic Company otherwise expressly consents in writing.
In instances where a work is not one “for hire,” an agreement may call for the transfer of rights immediately upon a work’s creation. This results in the same loss of copyright for the artist. Transfers of these rights can certainly result in severe future economic losses to an artist, should the work or copies thereof increase significantly (or even tremendously) in value. Alternatively, an independent contractor who retains the copyright in a commissioned work can possibly re-use (or further license) the work in other media or formats for further financial gain. Photographers discovered this a long time ago. They learned that a photograph taken for an advertisement could be reused and licensed (never sold) for other purposes such as textbooks, travel brochures, slide shows or even other advertisements. In that case, the creator is receiving additional income from the same photograph (illustration, character, story, etc.).
Retention of copyrights is thought to be crucially important to the financial viability of creative artists. Yet, several successful creators, as we have explored, expressly informed me that they realize all their work on major characters for those major houses (Marvel and D.C.) will basically always be on work-for-hire terms. In speaking to creators, the words “roof” and “bread” seem to provide a recurring theme.
The world wide web has provided unique opportunities for artists, cartoonists, and writers. Beyond the major comic book company sites are a world of independent sites. Just dial in http://www.houseoffun.com and enter the House of Fun. There Evan Dorkin and Sarah Dyer have provided a comics’ world. On their highway you can visit Milk & Cheese, Dork, as well as Action Girl. All of which are completely owned by these creators.
The terms of the relationship between the artist and hiring party are of paramount importance to the ultimate determination of the copyright ownership in a work. A freelance or commissioned artistic creator must keep watch on this area very closely. Administered properly, it is quite possible for a copyright to become an artist’s supplementary or retirement income, or even produce significant income for his or her family well after the creator passes away. If you imagine receiving a nickel every time Superman’s image is reproduced on a comic, shirt, toy, in the movies or on television, then the scope of what’s involved becomes obvious. So, draw on, write on, but, be careful with your deals.
(c) 2011, 2015 The Jacobson Firm, P.C.