{"id":14774,"date":"2012-01-04T09:05:02","date_gmt":"2012-01-04T17:05:02","guid":{"rendered":"http:\/\/www.amptoons.com\/blog\/?p=14774"},"modified":"2012-01-04T09:06:00","modified_gmt":"2012-01-04T17:06:00","slug":"copyright-comics-and-compulsory-licensing-2","status":"publish","type":"post","link":"https:\/\/amptoons.com\/blog\/?p=14774","title":{"rendered":"Copyright, Comics, and Compulsory Licensing"},"content":{"rendered":"

[In 2008, I wrote a few posts on the blog “The Art Of The Possible.” I just noticed that “The Art Of The Possible” no longer exists, but I found a copy of one of my posts on the wayback machine<\/a>, and decided to post it here on “Alas” for the first time. The comments people left in 2008 can be read at the Wayback Machine’s copy of the post. –Amp]<\/em><\/p>\n

Reading a post on \u201cPositive Liberty\u201d from back in August, I came across this comment from D. A. Ridgely<\/a>:<\/p>\n

And okay, so we\u2019ll always have people writing bad poetry whether it is copyrighted or not. For the most part, copyright of bad poetry at least could be said to do no harm. The world does not suffer by my refusing to share my high school written poetry with it.<\/p>\n

But the world does suffer if real works of good art go uncreated because self-interested artists decide there\u2019s just no point in doing art, better to go get that MBA.<\/p><\/blockquote>\n

On another blog, Jim Glass wrote<\/a>:<\/p>\n

Say that without copyright you came up with a great, clever cartoon and put it on your web site. What would prevent the scouts from Disney or Fox from just taking it as their own, putting $1 million behind it, making $100 million, and saying screw you. Would you go on to make another cartoon then?<\/p><\/blockquote>\n

Defenders of our intellectual property system frequently bring this question up: Without intellectual property (in the form of copyrights and trademarks), what incentive will artists have to produce art?<\/p>\n

I\u2019m a cartoonist (you can see my cartoons here <\/a>and here<\/a>, if you\u2019re curious), and the only art form I know a lot about is cartooning. Most cartoonists are big fans of intellectual property, and get hysterical if someone says copyright is threatened. But copyright and trademark, as they exist in the US, have been a mixed blessing for some of the best American cartoonists.<\/p>\n

The problem is, once we have a system of law which says \u201conly entity A can publish stories about such-and-such characters,\u201d then it\u2019s possible for the right of a creator to sell stories about her characters to be taken away. This has, in fact, been the rule for most of comics history. Superman\u2019s creators, Jerry Siegel and Joe Shuster, didn\u2019t own Superman \u2013 and, decades later, found themselves penniless and legally forbidden from selling comics featuring their most valuable creation.<\/p>\n

Jack Kirby is the most commercially important creator in the history of American comic books. Kirby created or co-created Iron Man, The Hulk, The Fantastic Four, The Silver Surfer, Captain America, Thor, and The X-Men, among others. Collectively, Kirby\u2019s creations are intellectual property worth billions, providing huge profits (and thousands of jobs) not only in comics but also on TV, in movies, and in toys.<\/p>\n

But during Kirby\u2019s commercial peak, in the early days of Marvel Comics, Kirby was often unhappy with his pay and with his rights as a creator. Furthermore, Marvel had a \u201cgentleman\u2019s agreement\u201d with DC not to poach artists from each other, and no other comic book company had a stable of valuable superhero properties to hire Kirby to draw. As a result, Kirby\u2019s pay wasn\u2019t in line with the worth of his work.<\/p>\n

Kirby didn\u2019t stop working \u2014 how could he? He had a family to support. Plus, by all accounts, Kirby loved creating comics. But what Kirby did, according to Mark Evanier\u2019s biography of Kirby<\/a>, is stop creating new characters for Marvel. Instead, when Kirby thought of a new idea, he\u2019d write it down on a scrap of paper and put the paper aside. Many of those papers got lost.<\/p>\n

Eventually, Kirby was hired by DC comics, and he went on to create some powerful work. But DC rarely gave Kirby the support he needed (they even went so far as to have another artist redraw Kirby\u2019s Superman faces, since Kirby\u2019s faces didn\u2019t look like DC\u2019s then-existing house style). Even though his work remained artistically good, Kirby never again hit the same peak commercially, and his pay was still lousy. As soon as Kirby found work outside of comics \u2014 creating character sheets for Saturday morning animations \u2014 Kirby quit comics.<\/p>\n

If the purpose of intellectual property law is to encourage the best artists to create as much of their best work as possible, then IP law failed Jack Kirby. Kirby\u2019s interests weren\u2019t protected. The value of his work made it essential to Marvel Comics to legally divorce Kirby from his creations (they even refused to return his original artwork for years). The fact that any character he made up, he would have been giving up the right to control, encouraged Kirby to withhold characters during his most fertile creative period \u2014 ideas that might have been worth millions.<\/p>\n

Well, you may say, that\u2019s Kirby\u2019s fault for selling the copyright to his work, rather than holding on to ownership. But suppose Kirby had refused to work with Marvel Comics. Who would that have helped? The world would most likely not have had the X-Men, The Hulk, The Fantastic Four, and many other Kirby creations. Again, IP law would have failed to encourage Kirby to create as much as he could create.<\/p>\n

Probably if Jack Kirby were here, he would disagree with me. But I think Kirby would have been better off if it hadn\u2019t been legally possible for Marvel Comics to own the exclusive right to publish the characters Jack Kirby created.<\/p>\n

Suppose that instead of our current system, we had a system of compulsory licensing<\/a> for fictional characters. What this means is that anyone could write or draw any fictional character they like \u2014 but if they aren\u2019t the original creator, then they are legally obliged to pay the creator a royalty for use of their work.<\/p>\n

So to return to Jack Kirby\u2019s case. Yes, certainly, Kirby would have been pissed off because people were using his characters in ways he didn\u2019t like \u2014 but that was frequently the case anyway. (For example, Kirby hated what Stan Lee did with the Silver Surfer character). The difference is, Kirby would have had no motive to withhold characters during his most commercially valuable period, because he wouldn\u2019t have been giving those characters away forever by drawing them.<\/p>\n

It\u2019s also likely that Kirby would have been more successful at enticing another publisher to hire him, if Kirby could have offered not just his own services, but his own services on his hit creation The Fantastic Four<\/em>. That, in turn, might have forced Marvel comics to pay Kirby what Kirby was worth, in order to keep Kirby from moving to another company.<\/p>\n

The down side of this is, Kirby might have found himself in the position of competing against another creator\u2019s version of The Fantastic Four<\/em>. But would this be such a terrible outcome?<\/p>\n

1) Kirby might have been better off being able to create The Fantastic Four<\/em>, and competing with another version of the same characters, than he was in reality \u2014 in which, for his entire post-Marvel career, it would have been illegal for Kirby to create a Fantastic Four<\/em> comic.<\/p>\n

2) Kirby would have welcomed being paid for all the times that lesser creators used his creations in their work. This would have provided Kirby with an incentive to keep on creating new characters, rather than our current system, which motivated Kirby to withhold new characters.<\/p>\n

3) Comic book consumers would be better off if publishers had to compete to produce the best Fantastic Four<\/em> comic. This, in turn, would have raised Kirby\u2019s value to his employers.<\/p>\n

When I bring this topic up in conversation, I am inevitably asked how I\u2019d feel if someone other than me started making up their own comics about Mirka, the protagonist of my comic book \u201cHereville.\u201d Wouldn’t that make me furious?<\/p>\n

I don\u2019t think it would. I think that my version of Mirka \u2014 my particular vision \u2014 is what makes \u201cHereville\u201d worth reading (if it is worth reading). If our laws were set up for it, I\u2019d be happy to compete with other creators, to see who\u2019d produce a Mirka that readers want to read. In the end, I think that the best work sometimes has a competitive advantage, and will tend to be remembered most by readers.<\/p>\n

And if someone else ends up having a hit best-seller based on my characters \u2014 well, at least I\u2019d get royalties. But I might get more than that, because sales of character-based fiction are not a zero-sum game.<\/p>\n

For instance, when popular movies are made of comic book characters, sales of that comic book go up<\/a>. Suppose Joan draws a best-selling ExampleLass <\/em>comic. That could easily cause the sales of David\u2019s competing ExampleLass <\/em>comic to go up, because interest in the character is increasing. If David is the creator of ExampleLass<\/em>, then he\u2019d benefit twice \u2014 once in increased sales of his own comic, and then again when Joan pays David royalties.<\/p>\n

I\u2019m sure that compulsory licensing would have problems. But so does any imaginable system. The real question is, might compulsory licensing be better than our current system? For many of the best creators, such as Jack Kirby, I think the answer might be \u201cyes.\u201d<\/p>\n","protected":false},"excerpt":{"rendered":"

[In 2008, I wrote a few posts on the blog “The Art Of The Possible.” I just noticed that “The Art Of The Possible” no longer exists, but I found a copy of one of my posts on the wayback … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[135,91],"tags":[],"class_list":["post-14774","post","type-post","status-publish","format-standard","hentry","category-crossposted-on-tada","category-free-speech-censorship-copyright-law-etc"],"_links":{"self":[{"href":"https:\/\/amptoons.com\/blog\/index.php?rest_route=\/wp\/v2\/posts\/14774","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/amptoons.com\/blog\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/amptoons.com\/blog\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/amptoons.com\/blog\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/amptoons.com\/blog\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=14774"}],"version-history":[{"count":2,"href":"https:\/\/amptoons.com\/blog\/index.php?rest_route=\/wp\/v2\/posts\/14774\/revisions"}],"predecessor-version":[{"id":14776,"href":"https:\/\/amptoons.com\/blog\/index.php?rest_route=\/wp\/v2\/posts\/14774\/revisions\/14776"}],"wp:attachment":[{"href":"https:\/\/amptoons.com\/blog\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=14774"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/amptoons.com\/blog\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=14774"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/amptoons.com\/blog\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=14774"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}