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THE LAW IS A ASS for 03/13/2001
DOCKET ENTRY
"The Law is a Ass" Installment # 86
Originally written as installment # 75 and published in Comics Buyer's Guide issue # 655, June 6, 1986 issue
The comic-book industry must have more budding creators than an English flower garden in the spring has budding buds. The one topic I'm always asked to write about is copyright law: what is it, how do I get it, how to I keep others from stealing mine? It's a question of timely interest what with all the fervor over Napster. (For the record, yes I believe that Napster and such music sharing Internet services violate copyrights.) The column below, and the one that will follow next week, were my first columns dealing, at length, with copyright. The law discussed in them is simplified. Copyright law is more complicated than I make it in the columns. That's why law schools have whole courses on copyright law. That and so that they can get your tuition money. In the columns, I was only giving the basics. So, you should use the columns as a good starting point. But if you have any real-world copyright questions of your own, you really should consult an intellectual property lawyer.
As I said, the columns were my first. They weren't my last. But hopefully I manage to keep the topic relatively interesting every time.
I guess you'll have to let me know.
******
"The Law is a Ass"
Installment # 86
by
Bob Ingersoll
Of all the topics that I've covered in my two plus years of writing this column, I never thought the one that would garner the most requests for a follow-up column would be copyright law. But it is.
I mean copyright law is real-world law stuff, full of boring, over-long and unnecessarily-complicated wording in the statutes. But it's the one I keep getting requests for me to write, a column on copyrights.
So, okay, here it is.
Specifically, to Dixon Chandler of Fayetteville, Arkansas, who wants me to do a column on writer's rights; this is it. I know the request was quite a while ago, I hope you're still reading. (Any of you out there who might know Dixon, would you be sure that he reads this column? He did ask for it, after all.) Tim Allen of Fort Atkinson, Wisconsin wants a summary of the different types of rights and asks how he can buy the rights of some old characters. Harlan Ellison--yes that Harlan Ellison--of Sherman Oaks, California suggested a follow up column on different ways one can infringe copyright.
I suppose the best place to start is to explain exactly what a copyright is. Centuries ago people used to create works of art, particularly stories and puppet shows, and make their living by traveling around and selling them to new markets. (Almost makes you sad they invented the printing press, doesn't it? If Jim Shooter had to travel around the country telling the story of Secret Wars in person, he wouldn't have had time to write Secret Wars II.) Unfortunately, when these creative people came to a new market, they would frequently find that some uncreative lout had stolen their idea and already sold it, making money from their creation.
The creative people didn't like that idea. Many gave up creating. So the government, to foster creativity, decided to stop people from selling unauthorized copies of creations. The government established that only the creator of a work has the right to make or sell copies, but he is free to sell the right to make copies for a profit. The government, in its infinite wisdom, decided to call the right they had created a copyright. (Probably took 'em years to come up with the name.)
Thus a copyright is the exclusive right vested in the creator to make and sell copies of his work. If anyone violates the creator's copyright, the creator can have a court order the offender to stop and can even ask the court for monetary damages from the offender.
But how does copyright work?
Let's assume that you've worked for hours at your desk, feverishly laboring, ignoring food and drink and companionship, until, at last, you've created something. Something other than a divorce, that is. You've got the first story of your new character, The Amazing Ruta-Baga. What's the first thing you have to do in order to copyright it? A: Affix the copyright symbol, (c) Joe Blough 1986, on the creation. B: Send two copies to the U.S. Copyright Office in order to register it. C: Send some money along with the copies in order to process the registration. D: All of the above.
Sorry it was a trick question. The correct answer is E: None of the above. A copyright comes into being, as soon as the creation reaches its final form, as long as that form is physical. You can't copyright an idea, only something that has a physical form. In the past, the creator did have to go through some machinations in order to secure a copyright on his or her creation. That is no longer the case. Under the most recent changes in the copyright law dictate that a copyright comes into being in the creator's name automatically, as soon as the creation is finished. The creator does not have to do anything in order to have his or her work copyrighted other that to finish it. By the magic of the 1976 copyright law, this column will be copyrighted in my name as soon as I type those magic words, "The end." (And, best of all, the magic trick works just as effectively on your magnum opus, as soon as you finish, even if you don't type, "The end."
Okay, so you don't have to do anything to secure a copyright on Ruta-Baga. But what should you do in order to protect your rights on Ruta-Baga? You should affix the copyright symbol, (c) Joe Blough and send two copies to the U.S. Copyright office for registration along with sufficient funds for processing, that's what.
I know I said you didn't have to register the work, in order for your copyright to be valid. You don't. Still, you should register the copyright, for it to be fully enforceable.
Why? Well, what if someone steals your creation? You're going to want to sue the thief. Under the copyright law, you can only collect monetary damages for a copyright infringement on the copyright that's registered with the Copyright Office in the manner described above. In order that your copyright can be enforced to the fullest extent of the law; register it. After all, what's the good of being able to sue on your copyright, if you can't collect any money for the violation? So, in order to be sure you can collect money, register the copyright. Beside which, the date of registration gives good evidence of who came up an idea first, in case our creative thief claims you stole his idea.
Now assume that some publisher wants to publish Ruta-Baga; what do they do, given that you own all the rights to the stories and the character? They buy the rights from you. What rights? What ever rights you choose to sell.
Remember, you own all rights to the work. If you only want to sell only first publication rights, you can. That way you'd retain the right to sell the reprint rights or the overseas publication rights or the TV/film adaptation rights to someone else. If, instead, you sell all the rights, then the publisher buys the right to reprint, sell overseas or sell to Hollywood. Or you can sell some package of rights in between.
As I said, they are your rights, and you can sell as many or as few of them as you choose to sell. And the buyer chooses to buy. He's part of the negotiations, too. He may want to buy more rights, than you want to sell, like all the rights. That's what the negotiations are all about, you bargaining with the buyer exactly how many of the rights you agree to sell and he agrees to buy and for how much money. In this you're on your own. I can advise you how to copyright in this column. I can't do diddly for you in the negotiations other than to advise that you have a lawyer. After all, the party on the other side probably does.
However, just so you're not completely out in the cold, I will detail what rights are customarily bought and sold. First of all, Marvel and DC, to the best of my knowledge, customarily deal in all rights. If you sell your stories or characters to them, you are selling all rights in perpetuity, and they never have to pay you another cent for your creations. They do now recognize creator's rights, and agree to pay the creator a percentage of any monies made from outside merchandising of the character. They also have a royalty program, and will pay you money based on a percentage of the cover price for every issue over one hundred thousand copies sold of a work you created. But for the most part, Marvel and DC buy all rights. Yes, Marvel and DC do have some creator-owned properties. We'll get to those in the nonce.
Many of the other publishers, Image, Sirius, Oni, Slave Labor, and the like frequently buy the right to publish the stories about your character, but you retain the rights to the character. These are the so-called creator-owned books. (Gee, has it been a whole nonce already?) Usually, your up-front money is less from these publishers, because you're supposed to make it up on the back end of the deal, based on the number of sales you get. And you get all of the merchandising money, unless you bargained some of it away to the publisher in the negotiations, which is not uncommon. Many independents only buy first publication rights, so you even retain all the other rights to the story.
You should keep these things in mind, when you go to sell a creation. Find out which publishers are buying which rights and make the best deal with the best publisher you can find. However, if you're trying to sell, say, a Spider-Man story; don't try selling it to anyone except Marvel, because they're the only ones who could publish it without being sued.
One thing you have to know about, when the story is published; two copies of all copyrighted and published stories must be deposited with the Library of Congress for reference within three months of publication. Failure to deposit will not affect your copyright, but it can cause problems. There can be fines and other hell to pay. Fortunately, the publisher usually takes care of the deposit requirement for you. Krause, for example, deposits copies of the CBG containing my articles, so I don't have to. (Krause does deposit the paper, doesn't it, Don and Maggie? Don? Maggie? Uh guys?)
Finally, let's assume that you want to buy the rights to someone else's character, so you can publish his adventures. Someone once wrote to me asking where he could buy the rights Wulf, the Barbarian, character published by the now defunct Atlas Comics Line. First, you have to find out who owns the rights to the character. Contact the U.S. Copyright Office or the Library of Congress, they can tell you. Then find out if the copyright holder is interested in selling. (Marvel, for example probably isn't too keen on selling Spider-Man, so you really are stuck with them, if you're trying to peddle a Spidey story.)
This task can become more difficult in the case of a character like Wulf, as the company who published him has been out of business for ten years. You might have trouble locating the copyright holder. I can't offer you any help there either. You're just going to have to look. If the copyright holder is willing to sell the rights, you to negotiate with it to buy the rights.
Having explained what a copyright is and how you get one, I intend to cover some of the ways in which you can infringe on someone else's copyright. That way you'll know what you can't do. However, I promised to keep my column to a manageable length, and I reached that several paragraphs ago. I'll cover this topic, including what Harlan said, next week.
Be there. Aloha.
******
BOB INGERSOLL, comic collector, lawyer and CBG columnist knows that last line was taken from every episode of Hawaii Five-0, so is copyrighted the producers and studio who owns that show. Next week, he'll explain why his using it wasn't copyright infringement.
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