Creator Rights and Comics

Answers, and Questions: Clarifying Creator Rights with Chris Roberson

In April 2012 writer Chris Roberson announced, via Twitter, his decision to terminate his working relationship with DC Comics. Citing “ethnical concerns” linked to publisher’s treatment of creators his actions sparked widespread commentary in the comic world. At some level, the decision shouldn’t come as a surprise. Roberson’s career highlights the opportunities and obstacles facing the contemporary writer and foreshadowed this decision. A writer with diverse credits such as Cinderella: From Fabletown With Love (DC), iZombie (DC), Starborn (BOOM!), and Elric: The Balance Lost (BOOM!) among others, his first success came as short story and novel writer. He is the author of Here, There & Everywhere (2005), The Voyages of the Night Shining White (2006) and The Dragon’s Nine Sons (2008) among other novels and his short stories have appeared in numerous magazines and anthologies.

Alongside his wife, he is founder of MonkeyBrain Books, an independent imprint that has allowed Roberson to publish genre fiction and nonfiction genre studies. The announcement of MonkeyBrain Comics then, falls neatly into an entrepreneurial pattern. Early in his career he, along with Bill Willingham (creator of the DC/Vertigo series Fables), Matt Sturges (writer of Jack of Fables) and Mark Finn (author of Blood & Thunder: The Life and Art of Robert E. Howard) formed Clockwork Storybook, a writing group that evolved into a webzine and ended as an early attempt as Print on Demand enterprise. While that effort did not succeed, MonkeyBrain Book allowed Roberson to take lessons learned and continue to innovate in the publishing world.

Julian Chambliss: Can you define creator’s rights?

Chris Roberson: Well, part of the problem associated with discussions on “creator’s rights” is that it runs the risk of being a fairly nebulous concept, and different people can have very different definitions. If we’re talking about someone creating something new, those rights are fairly well defined (in the United States, at least) under existing copyright law. But then there’s often discussion about the rights of people who produce works under work-for-hire arrangements, which can be far more subtle and nuanced. But even under work-for-hire situations, the people creating new work start with certain rights, and surrender or abrogate those rights through contract and negotiation with the employer. They essentially sign away their rights in exchange for certain concessions (usually a paycheck).

But there are also certain moral rights that aren’t necessarily delineated by existing US copyright law, which also fall within the umbrella topic of “creator rights”.

To my way of thinking, a fairly concise overview of the rights of creators was drafted by Scott McCloud in 1988, with input from the attendees at a creator’s summit organized by Dave Sim, Kevin Eastman, and Peter Laird, including Richard Pini, Larry Marder, Rick Vietch, and Steve Bisette.

JC: How affected are you by the “Creator’s Bill of Rights” crafted in the 1990s?

CR: I was just finishing high school and entering college in 1988 when the Creator’s Bill of Rights was drafted, and had already set my sights on building a career as a writer of comics. Discovering the Creator’s Bill of Rights, in an issue of The Comics Journal if I’m not mistaken, I accepted it as gospel.

I think that one of the most useful applications of the Creator’s Bill of Rights is that it clearly indicates for creators what rights they have at the outset. If they are entering into a publishing arrangement in which not all of those rights are granted to them by contract, then at the very least they can be aware of what rights they are signing away.

It’s unfortunate, though, that the Bill of Rights has largely fallen by the wayside, and become a historical footnote that far too many young creators have never encountered.

JC: Why do you feel the general public seems largely unmotivated by the debates attached to creator’s rights in comics?

CR: Not just the general public, but comics fans, and many comics creators themselves are uninterested in matters of creator’s rights, and in some cases actively hostile to them. I think part of the reason is that, for many people, the idea of being paid to make up stories or create art is a kind of impossible dream, and that simply by being employed to do creative work that creators have already won the lottery. I think many people resent the idea that creator’s might expect more than they are already getting.

But there’s also, for many comic fans, the fact that they become deeply invested in these fictional characters and fictional worlds, and react with hostility to any hint that someone might take action that would threaten the fans’ ability to enjoy more stories featuring those characters and worlds — even if the person taking that action is the one who created those characters in the first place.

JC: Is this connected to comics being “kids stuff?”

CR: I don’t think so. In fact, I think you could find similar examples of public disinterest in issues of creator’s rights in other media that hasn’t traditionally carried the “it’s just for kids” stigma. But typically it’s found in media that are collaborative to one degree or another — comics, film, television — and in instances where a single person can be identified as the sole creator — novels, gallery art — there seems to be a clearer understanding on the part of the public of what rights that sole creator should enjoy.

JC: Is this a problem of definition? If you said intellectual property rights do you think people would be more engaged with the questions related to comics?

CR: Possibly? But then, so many people have a weak grasp on just what is meant by “intellectual property” (including many people who make their livings producing creative works) that using a different term would just introduce another host of complications.

JC: What needs to be done to create a discussion about creator’s standing in the broad society?

CR: I wish I knew!

JC: How are market dynamics affecting the creator’s right debate in your opinion?

CR: Well, if by “market” you mean the comicbook “direct market” system by which the output of publishers is distributed to retail stores, it’s had a fairly significant effect on that debate in recent years. The comics market has contracted by fits and starts for decades, until what was once a mass medium is now catering to a fairly niche audience. The direct market has evolved into a machine that is very good at selling corporate-owned superhero titles published by two main companies, DC and Marvel. There are things that aren’t corporate-owned superhero properties that sell well in the direct market, but they represent a very slim percentage of the total. And both DC and Marvel have built entire entertainment empires on characters they acquired decades ago, often under somewhat ethically dubious circumstances. And as I mentioned above, the fans of those fictional characters often seem to have a vested interest in siding with the publisher in any debate or dispute, since the publisher is the one who is in a position to supply them more of the thing they enjoy.

Interestingly, though, outside of the direct market the situation is almost entirely reversed. Those comics which sell well to the general reading public are the ones that represent that very slim percentage in the direct market, and the comics that perform well in the direct market in many cases don’t appear to hold much appeal for the general public. And so, in that context at least, I think a discussion about the rights of creators might actually gain more traction outside of the “comics market” than it often does within, ironically.

JC: Is the “problem” associated with creator’s right stifling creativity in comics?

CR: I think that the most creative works are often those made under circumstances in which the creator’s rights are respected (though those circumstances won’t necessarily produce works that are creative, of course). And situations in which the creator’s rights are not respected often seem to reflect a diminished creativity. So certainly, if creator’s rights were to be respected across the board, I think the overall level of creativity would tend to go up.

JC: What responsibilities do creators have to safeguard their own creations?

Well, first and foremost they should learn what their rights are! They should gain a basic understanding of existing intellectual property law, should know the difference between copyright and trademark, should understand what the public domain is and what role it serves. They should learn to read their contracts, and develop the skills needed to negotiate with publishers when and if necessary.

JC: What do you say to people dismissive of the creator’s right debate, especially when they say this is a “problem of the past and modern creators are monetizing their creations like never before?”

CR: The lot of creators in the present moment is inarguably better than it was for many of our predecessors. But much if not all of that improvement came about because of the actions of creators like those who drafted the Creator’s Bill of Rights, who agitated and petitioned and cajoled until their circumstances improved. Many of those improvements, though, have come in the form of financial remuneration. And while money is great, it isn’t the answer to every question, or the solution to every problem. And while progress has been made, it hasn’t always been shared by everyone.

I’ve heard it said that “those old guys are all dead and buried,” but the brutal fact of the matter is that any number of those past creators who did not get their due are still with us. Of course, many of them won’t be for much longer, especially since a great many of them can’t afford health care.

JC: What’s your solution to the creator’s rights debate?

I don’t think there’s any single solution, since there are a great many problems associated with creator’s rights. But probably one of the most pressing issues has to do with the compensation (or lack thereof) received by past creators of properties that are still generating revenue today.

Kurt Busiek has actually made a rather cogent and simple suggestion that, I think, would go a considerable distance towards rectifying those kinds of issues. Some of the larger publishers, DC in particular, now employ a work-for-hire creator-equity deal, in which people who create a new character or concept under a work-for-hire contract will get a portion of profits in future if that character is used in a film, or as an action figure, or what have you. Kurt’s suggestion is that the publishers grandfather their current creator-equity deals back to 1938, and extend that same kind of profit participation to creators who worked for them before those standards were in place.

It would serve to obviate the need for the lawsuits that many of the creators and their estates continue to bring, but it would also provide the publishers themselves with a public relations bonanza, because they would be able to show how they were taking care of the people that made these characters that people cherish now.

JC: Why not allow the courts to decide these issues?

Well, ultimately the courts do decide issues surrounding intellectual property law. And if there is a disagreement between a creator and a

publisher about the terms of an executed contract, taking the matter to court would be a possible remedy. But many creators don’t relish the prospects of attempting to bring suit against a multinational conglomerate with very deep pockets.