What We Talk About When We Talk About Creator Rights

The news this week that Jack Kirby's heirs are seeking ownership of his brilliant creations (often co-created with Stan Lee) published by Marvel Comics has me once again thinking about the rights of comics creators. But rights are a legal issue, settled in court, and often with little or no regard for what is moral or ethical. What we talk about when we talk about creator rights, is actually just human decency.

I was recently discussing Alan Moore and creator rights issues with my nephew. During that conversation, I fell back on an argument I often make. When Jack Kirby created The Silver Surfer (one character that there's no question he alone created), or when Alan Moore and Dave Gibbons created Watchmen, no one expected the characters to change comics as they did, or to last as long as they have, and certainly, no one, the creators or the companies they were working for, ever expected these ideas to generate the revenue that they have. When parties to a contract are all unaware of the true value of the thing being agreed upon, it's both right and good business practice to re-examine and perhaps re-draft the contract so that everyone is more fairly compensated. It happens with unexpectedly popular movie and TV series all the time; it almost never happens in comics. The difference is, you can't recast a movie or TV series character with a new actor or actress and expect the viewers not to notice the change. Unfortunately in comics, the publishers know if the talent gets uppity, there are always more creators in line to take over.

I do believe it comes down to having a decent set of ethical values, this question of properly compensating your creators. And by "properly," I don't mean "sticking to the letter of the contract." I mean "Taking into account historical precedent and paradigm shifts, and recognizing the occasional unforeseen works of brilliance that no one could have conceived ahead of time, and acting with decency and honour toward the creators that work for you."

For example: Wolverine. Created by Len Wein and John Romita Sr., mostly, I believe. But by more or less random chance, the artist who first depicted the character in a comic book story was Herb Trimpe (in a three-issue storyline in The Incredible Hulk). Now, Trimpe did not invent Wolverine; he did not even design his costume. But he did pencil the very first story the character ever appeared in. Those issues are highly sought after in the back-issue market, and without them, it's certainly possible that Wolverine never would have been used by Wein in Giant Size X-Men #1, and it's possible that the character might not have earned the likely millions and millions of dollars he has generated for Marvel since his creation in the mid-1970s.

Has Herb Trimpe received even a dollar for his part in the debut and popularizing of Wolverine? The usual answer I get is that Trimpe was paid for the pages he drew and legally is entitled to no further compensation. Which is true enough so far as it goes. But does that make it right? Does that render it morally and ethically defensible? That the first artist ever to depict the character in comics gets literally nothing while comics, toys, movies and t-shirts generate hundreds of millions of dollars strikes me as ludicrous at best, and very nearly obscene at worst.

And undeniably, it's short-sighted and bad for business. I won't argue with anyone who tells me Herb Trimpe is unlikely to return to Marvel and create a blockbuster, breakthrough character that generates millions of dollars, no matter what sort of compensation deal is in place. But I will say that people like Frank Miller and Alan Moore (to name two well-known creators who've been badly burned more than once) very likely would have given us wonders untold these past few decades, if they hadn't already been screwed over, and seen as well how their fellow creators have been ground up and spit out by the corporate comics work-for-hire system.

What amazing new characters have been introduced in the past 15 or 20 years at Marvel and DC, with the companies retaining all rights to the characters? Not many that I can think of. Modern-day creators from Geoff Johns to Brian Bendis to whoever you care to name, they all know that if they give up their best ideas to the corporations that publish North America's superhero comics, chances are they are going to get screwed over sooner or later. So we get endless variations on existing characters, but when was the last time a brilliant new character debuted in a corporate-owned superhero comic and went on to capture the imagination of hundreds of thousands (never mind millions) of readers?

Occasionally, the collective guilt of all the wrongdoing they've done seems to move someone within these giant companies; as Dave Cockrum lay dying, Marvel threw him a bone. But it very likely was not all to Cockrum's favour. I know other comics artists of Cockrum's era who have been asked to sign retroactive agreements stating that Marvel owns all rights to their previous Marvel work, even in cases where the assigned rights are definitely not cut-and-dried to begin with. I know at least one artist who has repeatedly refused to sign such a contract, because he does not want to surrender what a judge may some day decide is his share of ownership in the characters and ideas he generated for Marvel. And so Marvel refuses to work with him at all, meaning stories readers want to see, that would generate enormous profits for the company, may never see the light of day.

Is it fear that drives these lousy, petty corporate decisions? Fear that once the floodgates are opened, they'll be left with no intellectual property at all? One wonders if they would have to live in fear if the past fifty years or so had played out differently. If the corporate comics companies had always played fair and compensated their creators for their ideas, for their loyalty, and for their work. If they had made it possible for the heirs of Jack Kirby, or Siegel and Shuster, or all the other writers and artists who gave literally decades of their lives over to enriching Marvel and DC, to not only pay their rent and feed their families, but actually leave behind an estate that provides for their families and pays tribute to their lifelong devotion to their art and their industry.

How great would it be if someone at the new, post-Levitz DC started asking why Alan Moore won't work for them anymore? How much greater would it be if the company actually made it right with the man? The only ones that would benefit from such a scenario, of course, would be Moore, DC, and us, the readers. In other words, everybody. These corporations have an obligation to look inside themselves at the harm they have done, to their industry, to the artform, and to their own bottom line.

It's a small and venal thing, the way corporate comics publishers treat their creators. It's petty, and shitty, and wrong. And it's almost certainly why so many of their comic books are meaningless, illiterate, inelegant junk these days. What we talk about when we talk about creator rights, really, is the manner in which a couple of corporations have painted themselves into a really lousy corner, and how they really need to make a big move toward repairing the decades of damage they have done, in order to attract true talent to create for them, and in order for anyone with any brains or self-respect at all to consider them anything other than the contemptible, amoral sons-of-bitches that they are.