Comic Creators Q&A
On Saturday, February 22, 2014, I had the pleasure of speaking with a group of creators in Manhattan Beach, California at the Comic Bug, perhaps the world’s finest comic book store (bonus points to anyone who gets the comic book joke hidden in that sentence – and full disclosure: the Bug is operated by my good friend Mike Wellman.) About 30 creators from various fields – including comics, film, and video games – were in attendance. I thought it would be interesting to go through some of the questions & answers that we discussed. If you were in attendance, please feel free to chime in with your comments.
I’ve edited the Q&A to capture the spirit of the concepts we discussed – the text of a two-hour conversation would be much too long for this blog. That said, here we go:
Question: What is a trademark?
Answer: Anything that indicates the source of goods or services in commerce. See my brief presentation for more on this question.
Question: What is a copyright?
Answer: A similar presentation on this question is forthcoming. For now, the key points are that copyright law protects original works of authorship including literary, dramatic, musical, and artistic works, such as books, movies, songs, computer software, and works of visual art. Copyright protects the form of expression. The underlying ideas are not copyrightable
Question: When can I use part of – or all of – someone else’s work – and when can someone else use mine?
Answer: In the copyright world, this generally comes down to an analysis of fair use. Fair use is a defense to a claim of copyright infringement. Courts are supposed to consider four factors when weighing such a defense (note my use of “supposed to”):
- The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes.
- The nature of the copyrighted work.
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
- The effect of the use upon the potential market for, or value of, the copyrighted work.
On a practical level, courts don’t really weigh each of those factors equally. In recent years, the 9th Circuit (the courts that have precedence over California and several nearby states) have taken a fairly broad view in favor of defendants when the use is “transformative.” This goes to Factor 1 – the purpose and character of the use. Has new expression, meaning, or value been added to the original work? As you can imagine, this is often in the eye of the beholder.
Question: What about parody?
Answer: A parody is “a literary or artistic work that imitates the characteristic style of an author or a work for comic effect or ridicule.” The Supreme Court has indicated that parodies are accorded high status under the First Amendment, and, therefore, courts generally rule in favor of the parodist. For more info, see this blog post about a Star Wars fan video.
Note that parody is different from satire. Satire uses a work to comment on a broader social issue, not the work itself. Satire is less likely to pass the fair use test, so be careful that you’re not confusing the two.
Question: How about that “Dumb Starbucks” thing. Is that a protected parody?
Answer: Maybe – although that gets into trademark parody issues, which is another problem entirely. I go into the Dumb Starbucks issue in more detail in this blog post from last week.
Question: What does this all really mean for working people in creative fields?
Answer: I like to refer to the Golden Rule – the one who has the gold makes the rules. It’s all well and good to learn the intricacies of intellectual property law, and I recommend that all creative types try to do so. That said, when I’m advising clients, the real question of “Should I do this?” often comes down to dollars and cents. Can you afford to defend yourself against a claim by a major entertainment or media corporation? If you’re not able to afford a lawyer, will you be able to find an organization like California Lawyers for the Arts, New Media Rights, or the Comic Book Legal Defense Fund, who can help advise you on your legal standing and, in some cases, finance your defense? For better or worse, these practical issues are important to consider before you jump in and publish or publicize your work, even if you think you have “fair use” on your side.
Question: On the contract side, what do I need to do when I’m working with other creators?
Answer: Copyright law assumes that, absent any written agreement to the contrary, all of the people who contribute to a creative work are joint authors of that work – which means that they jointly own the copyright and each have certain rights to the work. Oftentimes, that’s not the parties’ actual intention. Maybe you’ve written a comic book script and you’re hiring someone to illustrate it. Do you want to act as joint creators from here on out, or do you view this as a work that you own, and that you’re simply compensating the artist for her labor?
The latter example is a work-for-hire situation. I discuss the details of work-for-hire in this blog post, which chiefly concerns software code, but is also applicable to creative works of all types.
The bottom line – which you might predict – is to get it in writing. If you can’t afford an attorney, at least spell the deal points out in a document that all parties sign. If you can’t all agree to that kind of written document, you’re probably not going to work together well over the long term. Look at this as your opportunity to avoid problems down the line.
With respect to work-for-hire – this type of arrangement requires the party who will not be the copyright holder (say, the illustrator) to sign a written agreement to that effect, preferably beforehand. The more formal you can make that agreement, the more likely it is to hold up. Again, creators who are beginning their careers and are struggling with these issues are encouraged to reach out to organizations like the ones I listed above for access to information and resources.
This was just a fraction of what we covered last Saturday. I always appreciate the opportunity to have a dialogue with creators and entrepreneurs, to help them gain an understanding of intellectual property and business law, and to keep my perspective focused on the real issues they face rather than abstract legal theories. And thanks once again to Mike Wellman and the Comic Bug. Go there and buy some real, honest-to-goodness, analog-style paper comic books, true believers!
Note: The photo of the meeting is © 2014 Ben Kim and is used with his permission.