Tag: Fanboys

Go, Ken, Go! -- Part 2: The Curious Case of the Contracts

2013-05-17, 7:50 pm
Categories: Comics, Games, Politics, Stream of Consciousness

Archie is the most anti-creator publisher in the comics industry.

DC's bad. Marvel's worse. But Archie is the worst.

To this day, Archie's official company line is that Archie (the character) was created by company founder John Goldwater, while Bob Montana merely created "the original characters' likenesses". And it took an out-of-court settlement for Bob Montana to get even that half-assed credit.

And talking of court cases, what happened when Dan DeCarlo tried to get a piece of the Josie and the Pussycats movie? He was fired. After freelancing for the company for forty years and becoming the definitive Archie artist (and indeed the definitive "good girl" artist). And firing him apparently wasn't enough -- Archie actually started removing his name from reprints.

Archie has the gall to continue to claim that Dan DeCarlo didn't actually create Josie -- a character who is named after his wife.

Archie creators don't even get royalties or any form of profit sharing -- you get a page rate and that's all.

So it was against this historical backdrop that I heard Ken Penders claim that his Sonic comics had not been work-for-hire, and I was skeptical. Well, "skeptical" is one of the politer words I used at the time -- I also said his claims "strike me as some legitimately crazy shit".

(I suspected for awhile that this was why I was never approved to post on Ken's messageboard; now I'm more inclined to believe it's just an automated system that filters out four-letter names as probable spambots. At any rate, it was still a rude thing to say and I now believe it was factually inaccurate besides.)

That was my read on the case for the first couple years it ran, but not long after that, the other shoe dropped and the scope of what Penders was really claiming became clear: Archie never made him sign a contract. If you look through my posts from around that time (and I'll have a bibliography post in the next couple days), you can watch the scope of the claim begin to dawn on me and my view of the case start to shift to Penders's favor.

Hard as it was to believe, it was starting to look like Archie, the company that had been so iron-fisted in its treatment of its own creators over the past 70 years, really had dropped the ball. Ken wasn't the only creator making these claims. Scott Shaw, Elliot Maggin, and a laundry list of others were too.

Here's the thing about work-for-hire: under the Copyright Act of 1976, work-for-hire agreements must be made in advance, in writing. If Ken did not sign a contract before producing his work, then it was not work-for-hire.

Which still doesn't necessarily mean, in and of itself, that he didn't transfer the rights to Sega by way of Archie -- he could have sold the rights, even if the work wasn't produced for-hire.

But that doesn't seem to have happened.

Archie has produced some contracts which appear to have Penders's signature on them -- but they're sloppy, incomplete photocopies, and they're dated years after Ken first started writing and drawing Sonic comics. Ken has implied, though he's been very careful not to say it outright, that his signature may even be forged on them.

And personally -- and please note that this is pure unsubstantiated conjecture on my part -- I think he's got proof. Because by the end of last year, Archie was talking settlement.

Indeed, Archie's lawyer recently said the company was "desperate" to settle. But it hasn't.

And that's because this isn't just about Ken Penders and Archie. Sonic is a licensed comic; Sega owns the rights. Not just to the original characters, but to all the comics and everything in them. If Archie lost the license, Sega would retain the rights to reprint everything through another publisher (like how Dark Horse can reprint Marvel-era Conan and Star Wars).

At least, that's how it's supposed to work. But, if Ken is right and Archie never made him sign a contract, that means he owns, or at least co-owns, all the material he wrote or drew.

The way the contracts were supposed to work is that the writers and artists sign them and immediately give up the rights to Sega. According to Penders, Shaw, Maggin, et al, that didn't happen.

So Sega is denied the ownership it expected, because Archie screwed up the paperwork.

And, not to put too fine a point on it, Sega's been sued over it. And might be again.

Because I've been talking about Archie v Penders here, but there's another suit out there: Penders v Sega and EA.

The Sega/BioWare game Sonic Chronicles: The Dark Brotherhood included villains who resembled Penders's Dark Legion characters. I will grant that I've never played Dark Brotherhood -- but I'll also say that the very first thing I thought when I saw the advertising materials was "Oh, it's the Dark Legion."

So Archie v Penders has a direct bearing on Penders v Sega and EA -- because the outcome of Archie v Penders will determine whether Penders owns the Dark Legion and has grounds to sue for their appropriation in the first place.

If I were representing Sega, I'd be pretty angry at Archie for fouling up the paperwork and putting my company into this position. And I'm willing to bet that Sega is a lot less interested in settling than Archie is. Because even if it reaches an arrangement where it pays out a small, one-time settlement fee and doesn't have to worry about paying Penders for reprints or for any future games or reissues, a settlement opens the door for more writers and artists to assert their copyrights and pursue compensation.

So that's where things stand as of last week. Archie wants to settle but Sega hasn't granted approval for a settlement.

The judge is pushing to bring Sega in on the negotiations ASAP, and that should determine whether the suits are settled or go to trial. There should be more news any day now.

Update 2013-07-08: Archie v Penders has been settled; see Part 5 for my thoughts.

Go, Ken, Go! -- Part 1: Sonic Fandom ca. 1996

2013-05-13, 6:11 pm
Categories: Cartoons, Comics, Games, Politics, Stream of Consciousness, TV

I'd like to talk about Archie v Penders, because it fascinates the hell out of me. In fact, I've got enough to say about it that I'll be on the subject for most of the week, if not longer.

But I should probably get some disclosure out of the way first.

First of all, my feelings on creators' rights are pretty well known.

And second, I corresponded with Ken Penders for years in the mid-1990's and he was pretty cool to me.

It may be hard to remember in these days where I can just get into a political debate with Ethan van Sciver or ask Kurt Busiek about his unpublished Final Fantasy comics, but it wasn't so long ago that most people didn't have the Internet and it wasn't common for fans to connect directly, personally, and regularly with comics creators.

The first cartoonist who I ever knew to directly engage his fans online was Ken Penders. (Not the first person, and not even the first person who worked on Sonic the Hedgehog at Archie -- that honor goes to editor Paul Castiglia, who likewise was a class act -- but the first person who was actually writing, drawing, and inking the things.)

In those days, the main place where I participated in Sonic fandom was on a mailing list run by Ron Bauerle. And when I say "mailing list" I mean something less sophisticated than an automated majordomo system; I mean people E-Mailed Ron and he forwarded those E-Mails to a list of addresses, manually, with some edits and comments of his own.

Ken was kind, engaged, patient, and forthcoming. He took the credit or blame for ideas that were his, and he was entirely candid about decisions that were forced on him by Archie or Sega.

I always liked the guy, though I grant I often had a funny way of showing it. I was thirteen, fourteen years old, and behaved about like you expect an angry, entitled, teenage member of comic book fandom to behave. And Ken was always patient and polite with me (and others), even when I didn't earn it.

In my defense, there were times when he actively and transparently trolled the fans. The biggest thing that ever happened on Ron's mailing list was when one day Ken posted -- in a fake casual, "oh by the way" manner -- that he'd just written a script where he killed off Princess Sally.

He may not have deserved all the vitriol he got for that -- but he did very clearly and deliberately invite it.

(And while I remember being nastier than I should have been, I won't recant the substance of my criticism of the story -- if possible, my disdain for the "women in refrigerators" and "revolving door of death" tropes has only deepened in the intervening years. It was a terrible idea, a terrible execution, and, all right, at least the "Director's Cut" reissue of #50 shows that editorial meddling made the comic even worse than if Ken had done it the way he wanted to.)

But again, I always liked Ken -- he was a nice, friendly, forthright guy, who made time for his fans. Even when I didn't like the comics he was writing or drawing, I still liked him.

And, nontrivially, I also think he's a big part of why Archie's Sonic comic is still out there.

The mid-1990's were a weird time for Sonic fandom. The cartoon had ended, and the games were going through what would become the longest dry spell in their history.

Nobody expected, fifteen and twenty years ago, that Sonic the Hedgehog would still be running in 2013, zooming toward issue #250. (And that fact is essential to understanding the current legal disputes. It looks to me like Archie got sloppy with its paperwork, precisely because this was a licensed comic that they didn't think would last. But more on that tomorrow.)

Indeed, Ken didn't tell us at the time, but there was every possibility that the book was going to end with #50. I mean, given that the story arc was called Endgame, that should have been obvious, in hindsight.

But Ken, more than anybody else, is the guy who kept the book afloat. He's the one who took the wheel in the teens (#16?) and decided the book should depart from the slapstick roots of the Scott Shaw/Mike Gallagher/Dave Manak era and generally start to look more like the Saturday morning cartoon. He wrote more complex, character-based stories. That's how the comic attracted an audience outside its 8-to-12-year-old target, how it managed to keep its 8-to-12-year-old target, and generally the reason there's still a Sonic comic at all. Ken believed in the book, he took it seriously, he made it the best he could. It wasn't always great -- in fact, there were times it was downright lousy. But a Ken Penders story was still usually better than anything printed in the first 15 issues.

And look, I quit reading Sonic comics ages ago. People say Ian Flynn is great and I take them at their word. I definitely acknowledge the possibility that he's writing better comics than Ken ever was. I don't know.

But I am pretty confident that Ian Potto would never have gotten a job writing Sonic the Hedgehog if not for Ken Penders. Firstly, because there wouldn't have been a Sonic comic if Ken hadn't shepherded it through some of its most turbulent years, and secondly, because it was guys like Ken, Paul, and Karl Bollers who interacted directly with the fandom and created an environment where fans like Flynn and Dawn Best could actually make the step to pro.

So anyhow, that's my bias in all this. I like Ken Penders as a dude. I like a lot of what he did when he wrote and drew Sonic and Knuckles. I don't like a lot of what he did, too -- and while a lot of that's down to editorial meddling by Archie and Sega, some of it is indeed down to decisions made by Ken himself.

But that's not why I think he's right and should win the case against Archie -- indeed, when he first announced he was pursuing legal remedies I thought he must be crazy, and said so, rather rudely.

But as the facts have come out, I've found myself believing Ken isn't just morally in the right, he's legally in the right.

And that doesn't have anything to do with whether I, or anyone else, actually like him, as a person or as a writer or as an artist.

That's a point Sonic fanboys just can't seem to grasp in this case: whether or not you personally like Ken Penders's Sonic and Knuckles comics is completely irrelevant to the merits of his legal case.

Obfuscation

2013-04-08, 7:29 pm
Categories: Games, Stream of Consciousness, Tech

Continuing from Friday's post about a Microsoft employee's total disdain for Microsoft customers' concern about the next Xbox's rumored always-on requirement:

I want my game console to only be playable online, said no one ever.
Image via Quickmeme.
My Internet connection went down while I was trying to find it. I'm not kidding.

That's the crux of it, isn't it?

From a consumer standpoint, there is no benefit to an always-on requirement.

Now, people may try to obfuscate this point. They may list off all the benefits of an always-on option. And there are some! Cloud saves are pretty cool! So's online multiplayer! Having those things as options is great!

Making them mandatory, for all games, is not. And therein lies the disingenuousness of the argument.

EA COO Peter Moore recently shared this gem:

Many continue to claim the Always-On function in SimCity is a DRM scheme. It's not. People still want to argue about it. We can't be any clearer -- it's not. Period.

As difficult as it is to argue with the unassailable logic that is "It's not. Period.", there are two problems here:

  1. It's clearly DRM.
  2. Even if it weren't DRM, it would still be legitimately terrible game design.

This is one more case where a company representative is deliberately obfuscating the difference between a nice option and a good requirement.

The idea of an entire world of SimCities interacting with one another? That does sound pretty great! It's really a neat idea!

Is it integral to the gameplay?

Well, Peter Moore will tell you it is. Because Peter Moore is paid to tell you it is.

But it's turned out to be trivial to modify the game for offline play, and quite a lot of people have noted that the game plays just fine that way. The interaction with other players and cities is a nice option -- but it's not required to enjoy the game.

Indeed, it proved a pretty fucking considerable detriment to customers enjoying the game.

So beware this argument tactic -- "[X] is a good requirement to have, because of [features that could be implemented without making it a requirement]."

And its close cousin, "DRM is a benefit to the end user, because of [features that could be implemented without using DRM]."

DRM is never a benefit to the end user. No end user has ever said, "You know, this game is great, but it would be better if it had DRM."

Similarly, as the image above so succinctly notes, nobody has ever said "You know, offline games are great, but I sure wish they were as unreliable as online games."

Microsoft Doesn't Want My Business. That Can Be Arranged.

2013-04-05, 7:57 pm
Categories: Games, Stream of Consciousness

So in case you haven't been keeping score, apparently the next version of the Xbox will require an always-on Internet connection, even for single-player games.

As you might expect, some people are unhappy about this.

Microsoft's Adam Orth knows just how to treat concerned customers: by insulting and mocking them with disingenuous analogies.

Image: Adam Orth's Twitter feed, insulting his customers' intelligence and his own

Now, one of three things is true:

  1. Adam Orth is stupid.
  2. Adam Orth thinks you're stupid.
  3. Both.

I shouldn't even have to fucking explain this, but here goes anyway:

A video game console that doesn't work without an Internet connection is not analogous to a vacuum cleaner that doesn't work without electricity or a cellular telephone that doesn't work without cellular service.

Because, you see, a vacuum cleaner, by its nature, requires electricity to function. (Technically some vacuum cleaners get that electricity from batteries, but keep in mind, Orth's analogy is very very stupid.)

A cellular telephone requires cellular service to function.

You see where I'm going with this?

A video game console does not require an Internet connection to function.

Now, some games might. Complaining that, say, World of Warcraft requires an Internet connection would indeed be comparable to complaining that a vacuum requires a current and a cellular telephone requires cellular telephone service.

But -- fun fact! -- many video games are single-player.

Refusing to buy a video game console that requires an always-on Internet connection is not analogous to refusing to buy a vacuum cleaner that requires an electrical current.

Refusing to buy a video game console that requires an always-on Internet connection is analogous to refusing to buy a vacuum cleaner that requires an always-on Internet connection.

Your Average Ordinary Alien: My Second Audiobook

2013-02-02, 2:02 pm
Categories: Announcements, Books, Stream of Consciousness, Tech, Work

My latest audiobook: Your Average Ordinary Alien, written by Adam Graham. Available from Audible, Amazon, and iTunes.

The description, in the author's words:

Kirk Picard Skywalker is an unemployed sci-fi fanatic who dreams of being abducted by aliens from outer space. One day his dreams come through and he's horrified to learn that the aliens are all too ordinary.

It's the story of an unemployed computer scientist and his long-suffering girlfriend -- can't imagine what drew me to it -- and gave me the opportunity to flex some comedy muscles and play three characters plus narrator. It's a fun read, a bit of good-natured but ultimately sympathetic skewering of fanboys, and it made me smile. It's also got a Christian message -- a bit outside my usual, more cynical milieu, I suppose, but "Work hard and be kind to people" is, I think, a sentiment most everybody can get behind.

Be sure and read my previous audiobook post for some notes on Audible DRM. And you can discuss my audiobooks at Brontoforumus.

Shooting Yourself in the Hoof

2012-08-20, 10:47 pm
Categories: Games, Movies, Stream of Consciousness, TV

You know how a single ill-considered comment can overshadow absolutely everything else you say in an interview?

Well, if you've read the news today you can probably think of a pretty good case-in-point, but that's not what I'm here to talk about today.

Last Thursday I went to a Rifftrax presentation of Manos: The Hands of Fate, which ended with a fan video entitled Take It Easy, Torgo Style which I duly posted here.

The fellow in the video is Rupert Talbot Munch, who runs the site torgolives.com and who is working on an honest-to-God sequel to Manos, featuring as much of the original cast, and their families, as he could find.

The other night I poked around his (turn-of-the-century throwback red-on-black Flash) site and, after a series of dead-end "Coming Soon" links that directed me back to the main page with its autoplay music, eventually ran across a link to a Fangoria interview with Munch.

Now, Munch seems like a neat dude. Clearly he's an über fan; he's got a good costume, a sense of humor, and has shown legitimate dedication in getting the band back together and getting this sequel made. Plus a documentary. Plus...well, this is where everything goes wrong.

And if that wasn't enough, Munch and co. have been busy spiffing up MANOS: THE HANDS OF FATE for high definition. "We, the people who represent the original cast and all things MANOS, have been working on the HD restoration for over 14 months," he says. "Recently, some kid who found a print of MANOS at an auction is trying to cash in with the same idea. Myself and Joe Warren do not acknowledge, recognize, or approve of what this kid is doing. In the end, we just ask that the fans hold onto their money and wait for our version. It will include tons of never-before-seen footage, plenty of extras, cast and crew commentary, interviews...plus surprises. And the proceeds will go back to Joe Warren and the MANOS faithful."

Now -- possibly due to how legitimately difficult it is to find the link to this article from the torgolives site -- there are only 5 comments at the bottom of the article. And four of them are eight months old and the fifth is from me. But I do think it's telling that four of them (including mine) are negative responses to that one little paragraph out of the entire article.

Let's back up a bit. The "kid" he's talking about is Ben Solovey, and the restoration project he's talking about is Manos in HD.

Solovey, as Munch notes, got his hands on a work print of Manos and decided to restore it; he wrote about the experience.

Here is a truly independent horror film from the 60′s, a contemporary of 1962′s Carnival of Souls and 1968′s Night of the Living Dead. The main difference being, of course, that those movies came from career filmmakers Herk Harvey and George Romero, who had already made commercials and industrials and knew how a set should be run. Hal Warren, director of Manos, did not have that sort of experience and the deck was truly stacked against him.

[...]

If you yourself have ever been involved in an independent movie, Manos becomes somewhat poignant as you see evidence of the problems that have arisen and have been worked around or willfully ignored. [...] It's all very relatable stuff. And because this is a movie where the artifices of filmmaking are constantly crumbling and being rebuilt, a little shakier every time, it holds a certain fascination to film buffs that places it above worse and more boring films (which there are no shortage of, then or now). Simply put, it's memorable.

[...]

So rather than have Manos fade away as a footnote with only a cruddy video transfer to remember it by, I've resolved to make it a personal project to restore it.

[...]

In addition to making a digital restoration of Manos of sufficient quality to produce a new print or digital projection files, I will be creating a limited run Blu-ray and making the restoration available for repertory screenings. While it remains to be seen if this film is for anything but a niche market, I also feel that if I don't restore it no one else will.

Film restoration is something that too often falls by the wayside in troubled economic times. Though it's doubtful I will change anyone's minds about Manos, I would like to send a message that every film, regardless of the place it holds in movie history, deserves a fair shot to be maintained and presented in the best way possible.

Now does that sound to you like "some kid trying to cash in"?

Because, okay, first of all? If a guy were looking for a get-rich-quick scheme, and he told you he had a plan to release Manos: The Hands of Fate on Blu-Ray...well, look, that's a pretty fucking terrible get-rich-quick scheme, is what I'm getting at.

Yes, Solovey wound up exceeding his Kickstarter goal by some $38,000 -- but he had no idea that was going to happen when he bought the print. Even with the extra money, it's not clear if he's turned a profit or simply put that money back into making the project better than he had originally planned.

Point is, this sounds a lot more like a labor of love, born of a genuine desire to preserve a historical curiosity. And Munch kinda just pissed all over it.

And here's the thing: Manos has a pretty fucking small fanbase. If "fanbase" is even the right word. There is a whole hell of a lot of overlap between Munch's audience and Solovey's audience.

And I can relate to Munch realizing this and being upset -- to him, Solovey is unwelcome, unexpected competition, and threatens not just his bottom line but the exposure of a project that, to him, Joe Warren, and the rest, is also a labor of love.

But dude, one fan dumping on another fan? Very bad form. And incredibly off-putting to the fellow fans who you are trying to convince to buy your product instead of his.

So Mr. Munch, if you're reading this? (Not implausible, really; I'm often surprised by what kind of searches pull this site up.) Here's how I think you should handle it:

"We are aware of Ben Solovey's unofficial restoration project; he is not affiliated with myself, Joe Warren, or the Search for Valley Lodge team. We wish him the best but believe our restored version will be the superior product, as we have access to a higher-quality print, a larger restoration team, and many of the original cast and crew members."

Something like that. Make your case, explain why you think people should buy your version instead of his -- by all means! Nothing wrong with some friendly competition! But don't insult the guy. Don't mock his skill or his motives.

And I also get that Joe Warren may have a sense of ownership over his father's film. That's totally understandable! But the thing is, he doesn't own Manos. Manos belongs to all of us -- and that's not in some fanboy "Star Wars belongs to all of us" sense; Manos is public domain and legally belongs to all of us.

Somebody besides you and Warren wants to restore Manos? He has every right to. Somebody else wants to adapt it as a Zelda 2-style iPhone game? Totally acceptable too. And -- not to put too fine a point on it -- some guys from Minnesota want to put it on a show where a couple of puppets make sarcastic remarks about it? Yeah, that's legal too.

And so while, again, it's totally understandable if Warren has a sense of ownership toward the property, and is miffed when somebody else exploits its public-domain status without his family's blessing -- well, if somebody hadn't exploited its public-domain status without his family's blessing, we wouldn't be having this conversation. If Manos hadn't entered into the public domain and wound up in a box of movies that eventually made their way to Frank Conniff and MST3K, there would be no Manos sequel, no Manos restoration, no Manos documentary -- because nobody would know what the fuck Manos was.

All of this may seem a little harsh, but really, if you ever read this, Mr. Munch, I'd like to repeat that you seem like a cool guy, I love what you're doing, and I look forward to seeing your finished work. I just think you've made a pretty unfortunate misstep on this -- unfortunate enough that it overshadows all the cool stuff you talk about in that interview -- and in the future I'd advise a couple of things:

  1. Remember that Ben Solovey is a fan just like you and me, and just like you and unlike me he has put a whole lot of blood, sweat, and tears into making something lasting out of this silly-ass movie.
  2. And dude, seriously, do something about that website.

Fucking Fanboys.

2012-07-23, 9:25 pm
Categories: Announcements, Cartoons, TV

Dear guy who found this site searching for avengers assemble tv show sucks,

Man, life must be so much easier when you can form a strong opinion on a TV show based entirely on a single promo image.

(In fairness, yeah, that promo image is pretty bad.)

Also: According to ComicsAlliance, Jeph Loeb finally clarified the status of the two Avengers toons. Yes, Earth's Mightiest Heroes is ending to make way for Avengers Assemble -- but apparently the latter is a continuation of the former. On the whole, I'd say that's good news -- but then, I'm not the kind of guy who has to tell Google how much a show sucks before actually seeing a single frame of it.

...Actually, you know what? I, too, am going to share an opinion on Avengers Assemble based on absolutely no evidence whatsoever.

Avengers Assemble has a much less terrible theme song than Avengers: Earth's Mightiest Heroes.

You heard it here first.

Related: I've gone and updated the favesearches list again, because there is some good stuff in there.

Still Not My Batman

2012-07-11, 4:25 pm
Categories: Comics, Games

Providing another great example of the Not My Batman point I made the other week: a thread at Robot 6 where, discussing Arkham Asylum, I utter the eight words "it's more violent than I like my Batman" (in-between calling it "a phenomenally good game" -- twice) and multiple people feel the need to condescend to me and tell me I'm wrong and that's how Batman is supposed to be.

It's still just such a weird thing to me -- the idea that it's not enough to prefer one version of Batman over others, but to have to declare it the One True Version. It's not enough to say "Well, I for one have been waiting for a more violent Batman game"; it has to be "Obviously you aren't familiar with the source material; people like me have been waiting a long time for someone to make a game that's closer to the source material." Where "the source material" means "The Dark Knight Returns", because every Batman comic printed prior to 1986 doesn't count, obviously.

I will say one thing, though: not one single person argued with the part where I said "I really can't stand the art style."

Revisionist History

2012-07-10, 6:19 pm
Categories: Comics, Movies, Stream of Consciousness

I read something kinda odd yesterday.

It was linked at Robot 6. It's a piece from a British rapper by the name of Akira the Don, explaining on the Huffington Post why he isn't going to go see Amazing Spider-Man. And there's this little bit in there:

It's not being made because a bunch of people really wanted, more than anything else, to tell the best Spider-Man story they could on the sliver screen. It's being made to stop the rights to the character reverting from Sony back to Marvel. Who, as we have seen, make much better superhero movies than Sony.

Now, before I go any further, I'd like to establish two things.

One: I hate the fucking Huffington Post.

Two: While I am boycotting Kirby-based Marvel product (eg the Marvel Studios films), I am not at present boycotting Ditko-based Marvel product (eg the Sony Pictures Spider-Man films). I haven't seen Amazing Spider-Man, but I still might.

I'd go into a bit more detail, but my reasons for those two points could really each make for a complete post, so I think I'll leave them as something to write about later.

Anyway. It's quite clear that Mr. the Don wrote this with his tongue firmly in cheek and is not serious about it. And also, he (rightly) praised Sam Raimi's Spider-Man 2. So I'm not really trying to argue with him or tear his post down. But that one line is just kinda weirdly fascinating to me and I want to look at it a little further.

Marvel. Who, as we have seen, make much better superhero movies than Sony.

Really? I mean, Avengers has been a huge critical and financial success, but...are people's attention spans so short that that's going to become the conventional wisdom? The latest Marvel Studios movie was better than the latest Sony movie, ergo Marvel makes much better superhero movies than Sony?

I mean, look. I liked Thor okay. Story was pretty middling, but the art direction was fantastic.

But you wanna tell me it was better than the first two Raimi Spider-Man movies? Really?

Incredible Hulk, Captain America, Iron Man 2 -- all got pretty mixed critical receptions. And Punisher: War Zone? Let's put it this way: I was ten paragraphs farther down before I even remembered to scroll back up here and mention it.

Really, when you take a look at it, Sony and Marvel are pretty well even -- each has two big successes and a handful of mediocrity. Marvel's got Iron Man and Avengers, and Sony has the first two Spider-Man movies.

And then there's Fox, which I think probably also fits that bill: the first two X-Men movies were pretty successful, but the rest of their output hasn't been. (Maybe X-Men: First Class? I liked that one, anyway.) Fox may lose just based on the sheer volume of crap it's put out: X-Men 3, Wolverine, Daredevil, Elektra, Fantastic Four vs. Annoying Sarcastic Businessman, Fantastic Four vs. Giant Cloud of Gas...

Anyway. What Mr. the Don clearly means is that he wishes there wasn't this pesky matter of the outstanding movie rights at Sony and Fox, and that Marvel could get all its characters in one basket and we could see, say, Spider-Man and Wolverine in Avengers 2. As a fan, I can certainly relate to that desire; I really think the shared-universe aspect is what's made both Marvel Comics and the Marvel Movie Universe special.

But it's foolish to suggest that Marvel makes much better superhero movies than Sony.

Because -- just as in the comics -- it's not about the corporate rightsholder, damn it. It's about the creative team.

Avengers didn't succeed because it's Marvel, no matter how badly Marvel wants to say it did. Avengers succeeded because of Whedon and Downey and Ruffalo and Johansson and Hiddleston and Jackson and Evans and Hemsworth and Evans -- and, yes, the people who wrote and drew the stories it was based on, like Kirby and Lee and Heck and Millar and Hitch.

And the first two Raimi Spider-Man movies didn't succeed because they were Sony. They succeeded because of Raimi and Maguire and Simmons and Robertson and Campbell and Molina and Dafoe (and in spite of Dafoe's costume). And Ditko and Lee and Romita and Conway and Kane.

And don't get me wrong, there is something to be said about huge media conglomerates owning huge stables of characters who can all meet and interact. There is an episode of Batman: The Brave and the Bold that features both an adaptation of an old Mad spoof and a team-up with Scooby-Doo. It is awesomesauce.

Or, hell, the recent Avengers cartoon where Ben and Johnny come over to the mansion for poker night. That was great! And it's too bad that we can't see something like that happen in a movie because of rights entanglements!

But that stuff's not great just because it's DC/Time Warner or just because it's Marvel/Disney. It's great because great people -- writers, artists, actors, directors -- put it together.

Shot Across the Bow

2012-07-05, 6:43 pm
Categories: Comics, Movies, Stream of Consciousness

Warning: This post contains spoilers for the ending of the Avengers movie. (Though if you've made it two months without hearing about it, you probably don't care.)

So I've made it just past a month of posting every day, and closer to two months with Regular Updates. The post that kicked it off was about Avengers and creators' rights, and those types of posts seem to be my most popular ones. I've gotten E-Mails from a couple of unexpected readers at this point thanking me for my comments, and given that I get a couple of dozen visitors on a good day and most of those are people looking for Final Fantasy 7 mods, I'm a little surprised and flattered by that.

So here's another post about Avengers and creators' rights. Today we're going to talk about Jim Starlin and his creation, Thanos.

Thanos shows up in the end of the Avengers movie. He's only onscreen for a short tease, but it's a big moment, the reveal of the bad guy who set all this in motion and is now positioned as the major antagonist for the sequel.

More than that, actually: Marvel's working on a Guardians of the Galaxy picture, widely speculated to feature Thanos and give him some background before Avengers 2.

The LA Times' Hero Complex interviewed Starlin after Avengers came out, and it included this exchange:

HC: I spoke to Jerry Robinson once and I congratulated him on the billion-dollar success of "The Dark Knight" and he winced like I had poked him in the eye. Of course I instantly realized that watching Alfred, the Joker, Two-Face, etc. fill the coffers of Warner Bros. was like watching a son raised in another house with another family's name. I don't know the arrangements on this film, but has this project and its success been a mixed experience in any way?

JS: Very mixed. It's nice to see my work recognized as being worth something beyond the printed page, and it was very cool seeing Thanos up on the big screen. Joss Whedon and his crew did an excellent job on "The Avengers" movie and I look forward to the sequel, for obvious reasons. But this is the second film that had something I created for Marvel in it -- the Infinity Gauntlet in "Thor" being the other -- and both films I had to pay for my own ticket to see them. Financial compensation to the creators of these characters doesn't appear to be part of the equation. Hopefully Thanos' walk-on in "The Avengers" will give a boost to a number of my own properties that are in various stages of development for film: "Dreadstar," "Breed" and the novel "Thinning the Predators."

Of course, Thanos's appearance in Avengers has ignited some interest in the character; Marvel's got some new series with him coming out, as well as reprinting some old ones. In a recent post at Bleeding Cool, Rich Johnson saw a press release for a "new" Thanos miniseries and misunderstood Marvel's present-tense copy to imply that it was new work from Starlin rather than a reprint.

But it isn't. Starlin quit freelancing for Marvel back around the beginning of '04, citing the standard "irreconcilable differences".

And while I expect Starlin would get royalties if Marvel reprinted work he'd done in the past 25 years or so, these reprints are books he did back in '77, so he's most likely getting nothing for them.

So that's the story so far. Marvel is preparing a big marketing push involving Thanos, which may culminate in a major role in two Hollywood blockbusters. And it's not sharing anything with his creator.

So when Starlin posted a picture of Thanos on his Facebook account the other day, with these words:

This is probably one of the first concept drawings of Thanos I ever did, long before I started working at Marvel. Jack Kirby's Metron is clearly the more dominant influence in this character's look. Not Darkseid. Both D and T started off much smaller than they eventually became. This was one of the drawings I had in my portfolio when I was hired by Marvel. It was later inked by Rich Buckler.

that may sound like just a "Hey, here's a neat historical artifact I found, check it out" post. But Heidi MacDonald reads it as something much bigger, and I'm inclined to agree.

That seemingly-offhand reference to it being in his portfolio before he was hired by Marvel? What that actually says is, "Thanos was not created as work-for-hire, and I have proof."

I've talked, at some length, about the Kirby heirs' legal battle for the rights to Kirby's characters. Marvel v Kirby to date has hinged on Stan Lee's testimony and a lack of hard evidence contradicting it. Stan says everything Jack did at Marvel was work-for-hire and none of his characters were created independently of Marvel's requests, and Jack's heirs have been unable to produce art proving that he created characters on his own time before pitching them to Marvel. (I have opined, more than once, that such evidence was probably in the box or boxes of Kirby art stolen from Marvel in the 1980's before it could be returned to him; there is of course no proof of this but things certainly worked out well for Marvel.) There's no such problem here; Starlin has solid proof that he created Thanos before he went to work for Marvel, and therefore Thanos was not created for-hire.

Now, there are some other questions that arise.

The biggest is, did Starlin transfer the rights to Thanos to Marvel?

Marvel didn't keep good records at that point. Contracts were seldom formal affairs; more commonly, Marvel printed a legend on the back of a freelancer's paycheck saying that in exchange for the pay he transferred all rights to them.

Back-of-the-check contracts are dicey affairs. There's an argument to be made that they're coercive; after all, waiting until after an artist has already done his work expecting a payout for it -- a check he may very well need for rent and food -- and then hitting him with a "By the way, give up ownership or we won't pay you" doesn't exactly create an even playing field for negotiations.

Be that as it may, Marvel's back-of-the-check contracts were upheld recently in Friedrich v Marvel. I've heard that they were also upheld in DeCarlo v Archie but I can't find a primary source to verify that; the summary judgement I found appears to be based on later, more formal contracts that DeCarlo signed, not an original back-of-the-check contract.

But that still means that, if Starlin were to claim ownership of Thanos in court (and this is pure speculation, mind; he's made no indication that he intends to do so), Marvel would want to produce a copy of any contract he signed with them, back-of-the-check or otherwise.

(I've also heard that Starlin crossed out the legend on the back of his checks before signing them, though I haven't seen any primary-source verification on that claim. That would itself make for an interesting legal case -- even assuming back-of-the-check contracts are legally binding in the first place, what if you don't sign, or cross the contract out, and the check still clears? That might not be a wise thing to risk an entire suit on, but it would be fascinating.)

There's another wrinkle, as noted by Nat Gertler in The Beat's comments section:

We’re more likely to run into the Blade situation, which ended up resting (in my not-a-lawyer understanding of the case) not on the question of whether it was work for hire, but on the question of whether the similarities between the original Blade and the movie Blade were sufficient to be infringing.

That's an important point too. Marv Wolfman sued Marvel over the rights to Blade under similar circumstances, and a judge ruled that Marvel's Blade was so substantially different from Wolfman's version as to be legally distinct. And given that so far we've only had a brief tease of Thanos, Marvel's still got two films to make the "substantially different" case.

And there's another point to consider: even if Starlin did transfer the Thanos rights to Marvel, he's permitted to terminate the transfer after 56 years. Thanos first appeared in '73, so Starlin (or, if he doesn't live that long, his statutory heirs) can reclaim him in 2029. And Kurt Busiek (also in the comments section of that Beat post) suggests that this might be a negotiating tactic -- Starlin could agree not to seek reversion in exchange for a percent of royalties for Thanos's use, for example.

Indeed, that comments section is well worth reading, largely because of Nat and Kurt's input. There are a couple of the usual anti-creator types in there (and I'm pretty sure at least one of them is a troll, seeing as he wades right in and immediately says the most provocative and factually wrong thing he possibly can) but if you step over them and get to the people who actually know what they're talking about, you might learn something.

Speaking of anti-creator fanboys? Well, in the Kirby case the constant refrain has been "Kirby's heirs didn't do anything so they don't deserve anything." This, of course, is a case where a creator is still alive. Will that change anything? Will the people pooh-poohing the Kirby heirs' suit rally behind Starlin?

Well, to be fair, some of them might. But in general? Well, here's what one guy said to me a couple of months ago when I brought up Starlin's complaint that Marvel hadn't so much as bought him a movie ticket:

I think Starlin was about as uninvolved in the making of the movie as a person could possibly be. I'd wager I had as much to do with making The Avengers as Jim Starlin did. Granted, I didn't have a character show up for all of a 2 second reveal, but beyond that, our contributions were the same. Where's my free ticket?

(By the way, I got a free ticket to see Avengers. So that means I got more for the movie than Jim Starlin did.)

He went on to make a slippery-slope argument that compensating creators is equivalent to just putting the characters right out into the public domain and will end DC and Marvel, an absurd position I've dismantled previously. (tl;dr no dude a few million dollars for creators is not going to bankrupt the company that just made a billion dollars on its movie.)

Guys like that? It's not about the law and it's not about the ethics. It's The Spice Must Flow. It doesn't matter how Marvel treats creators, as long as it keeps putting out product to consume.

There's always a fresh rationalization on the horizon. "He signed a contract." No he didn't. "Well, he's dead now." Okay, but this guy's alive. "The character we know is the work of dozens of creators over a period of decades, so no one person can really claim credit to him." Even if that were true in some cases, Thanos is unmistakably Jim Starlin's character. "Well, it was only a tiny cameo, so he's not entitled to anything." And once Thanos has more than a cameo, it's going to be "Well okay, that's terrible, but the industry's not like that anymore; it's all better now." (A point Scott Kurtz raised recently, right about two weeks before Static co-creator Robert Washington III died of multiple heart attacks at the age of 47 and his family had to turn to charity to get him buried.)

There is and will continue to be a vocal minority of comic book fans who will side with the publishers no matter what. (Oh God how I hope it's a minority -- but I think it is. You can find a vocal population of people on the Internet who will angrily, zealously defend absolutely any dumbass position you can possibly think of.) And it's particularly galling when that includes guys like Kurtz, an actual cartoonist who makes an actual living from actual creator-owned comics. But The Spice Must Flow -- they like Marvel, they like the comics and the movies and the characters and the shared universe, and they see attempts at compensation by the people who actually created those characters as a threat. A threat to the free flow of those comics and movies or, perhaps even worse, the threat of making them feel guilty for enjoying them.

I think that's why justifications like "Well the heirs didn't do it so they don't deserve anything" and "Well okay, that's how it was in the Bad Old Days but it just doesn't happen anymore" are so prevalent: because they show a sympathy toward creators without actually indicting the current management at Disney/Marvel for any kind of wrongdoing. It means they don't have to feel bad about buying the latest issue of Daredevil (which, don't get me wrong, I hear is a really excellent comic -- and I'm certainly not asking you to feel bad if you buy it!).

But strip those away and there's always another excuse, always another justification.

And hell, maybe I'm just as knee-jerk in coming down on the side of creators over corporations. (Ken Penders might disagree -- I'm not allowed to post on his forums and I suspect it's because I once described his claims against Archie as "some legitimately crazy shit" -- but truth be told I hope he's right and I hope he wins. And yeah that comment was pretty out-of-line and I should probably walk it back to "I am skeptical but wish him luck.") But you know, I don't feel too bad about knee-jerk support of human beings. I don't mind being the guy who says "You know, if a movie makes a billion dollars, the guys who created the characters it's based on should get a higher share of that than zero percent."

Course, appeals to emotion aren't going to help Starlin get any compensation.

The good news is, he seems to have a better case and more leverage than most of the other comic creators who've fought Goliath.

Or maybe he just wanted to show people a drawing of Thanos. I dunno, I'm not a mind reader.