“Just Pay Ditko!” Part Eleven : Exploding The “Work For Hire” Myth

Posted: August 27, 2013 in comics
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The panel presented above comes from Steve Ditko’s 2011 comic Sixteen, published by Robin Snyder, and while the book’s title may be disarmingly straightforward, its themes are indeed complex and build off ideas that its artist/writer has been exploring for years. All you need to know to grasp the (perhaps tenuous) connection this piece has with this particular installment of our “Just Pay Ditko!” series, though, is that its main character,  a guy named Leder, is fed up with being double-crossed and ripped off and decides that the time has come to do something about it. And what we’re here to talk about today is quite possibly the biggest rip-of and double-cross in comics history (not that it doesn’t have plenty of competition, since the comics industry has been an ethical sewer almost from the outset).

Recently, we’ve been exploring various matters of copyright in relation to the Ditko work that has recently been reprinted by Fantagraphics Books, Yoe Books, and others, and examining the question of just how “public” some of the supposed “public domain” material that’s been included in these  Handsome (and expensive) hardback volumes really is. Today, I’d like to take that line of questioning one step further and ask whether or not any of it should really be considered PD at all.

Consider : the underlying reasoning  behind exactly why Ditko’s 1950s and ’60s work for Charlton Comics, in particular, is considered to be PD rests in the belief that it was “work for hire” material that has seen its rights, previously held by the publisher, lapse. But what if it was never really “work for hire” to begin with?

If you’re like me, you’ve long held the notion that all comics work for the major and minor publishers, until the advent of creator ownership, was strictly WFH stuff. Why, outfits like Marvel, DC, Charlton, and others were so fucking brazen about this that they even stamped WFH contracts on the back of artists’ and writers’ paychecks up until the late 1970s, effectively forcing creators to give up all rights to their work if they chose to endorse, and thereby cash, their checks. Sign your life on the X if you wanna eat, buddy.

Pretty sleazy, right? Sure it is. But what if those “work for hire” contracts actually stipulated something else entirely?

Patrick Ford, a noted comics fan and historian who’s been studying these issues a lot longer than I have, recently shared some rather interesting information that I had not previously been aware of — namely that these infamous “paycheck contracts” didn’t explicitly spell out the terms of a true “work for hire” arrangement at all!

The simple fact is,  until the 1976 revisions to US copyright laws came into full effect in late 1977/early 1978, comics publishers didn’t even use the term “work for hire” at all. True WFH, you see, stipulates that the publisher not only owns the rights to print a creator’s work, but owns the original, physical pages of work themselves. Those “paycheck contracts” — none of which, by the way, have ever even been able to be produced for, and therefore entered into evidence in, a court of law — actually said nothing about Marvel, DC, Charlton, etc. assuming ownership of the original artwork they were publishing, only that they were paying for the specific rights to print that artwork. So who owns it? Well, considering that Marvel got damn serious about finally returning all that original art they’d had laying around in their offices for years early in 1978 (unless your name was Jack Kirby, in which case they tried to hang onto all your work until their knuckles were bloody), I’d say it’s pretty obvious — the publishers knew the artists were the actual owners of their work, and that all they owned owned the right to run it in their comics publications.

All of which begs the question — if the publishers themselves came (okay, were forced to come) to the realization that they didn’t own the physical artwork itself, why does the retroactive determination that pretty much all old comics work fits the “work for hire” designation hold any water at all? Quite clearly, artists like Steve Ditko who were busy cranking out pages for Marvel, DC, Charlton, and other publishers prior to 1976 had never heard of the term “work for hire” because the publishers themselves never had and didn’t even refer to the artwork (and scripts) they were purchasing as such! So if the artists, writers, etc. of the comics in question were not, in fact, signing “work for hire” agreements in the years prior to 1976, why should that work be subject to WFH status now? And why would the rights to it that have supposedly “lapsed” into the public domain truly be viewed in such terms since the creators of this “lapsed” work weren’t signing away rights that even could “lapse” at any point since the publishers themselves never really owned those rights (beyond the rights to print it, distribute it, and sell it)?

Obviously, this situation is a mess. The whole idea of retroactively declaring any material to be “work for hire” is problematic in both practical and ethical terms, and for decades now comics creators have seen a standard applied to their contracts after the fact that was not reflected in the language of the contracts they originally signed. Retroactive WFH is a gigantic hustle that works entirely in the publishers’ favor, and the kicker is — everyone in comics knows this.

Fortunately, at least one good idea (and no, I don’t count “let’s reprint as much of this stuff as we can get away with until somebody says something!” as being a “good” idea) for how to deal with this fairly has been offered — I don’t know who came up with it first, but I’m giving credit to veteran comics editor/artist/iconoclast Mort Todd, since I at least heard it proposed from him first. We’ll call it “The Mort Todd Solution” — unless he objects, of course — and its rather elegant in its simplicity. Simply put, it’s this : if the original “work for hire” contracts for any given comics work can’t be produced, then the rights to that work should default to its creators.

Yeah, there are various equities that would have to be worked out — what percentage is owned by the writer, what percentage by the penciller, what percentage by the inker, what percentage by the colorist, what percentage by the letterer, etc. — but wouldn’t a messy situation that at least resulted in the creators of comics material being paid be preferable to a messy situation in which only the publishers are being paid? When it comes to the subject of this series series specifically, Steve Ditko, we’ve seen how various publishers of his reprinted work approach the whole idea of just paying the man for what he’s done entirely differently. Mort’s idea would put to rest all these various and sundry “we paid him,” “we didn’t pay him,” and “I offered to pay him — really, trust me, I did!” scenarios because Ditko and his collaborators would have owned the material from the outset and been free to negotiate a publishing deal that would have guaranteed them payment. Can anyone honestly say this wouldn’t have been a preferable starting point when it comes to putting together reprint packages of old comics work?

Well — anyone who isn’t a publisher, at any rate?

  1. Volker Stieber says:

    The Mort Todd Solution (MTS) sounds nice and feels good, but it’s an arbitrary assignation of property. One can validly argue that, if proof is presented that the creator(s) were paid the amount promised upon delivery of the completed work, then ownership rests with the payor upon completion of the transaction unless there is a contract beforehand that stipulates return of the art to the creator. This solution is equally elegant in its simplicity, it just doesn’t follow the David-versus-Goliath tale that resonates with the readership’s collective heartstrings.

    The MTS effectively converts a purchase to a rental without a contractual basis. It also completely ignores that the publisher has significant financial obligations to meet: to its owners/stockholders, creditors, printers, employees, storage facilities, etc.–there is a reason why small independent presses were rarely big winners, which relates to economies of scale. The risk of grand-scale economic failure is with the publisher even after the creator has been paid. I absolutely understand why publishers believe they have a legal and moral right to ownership of the work which they paid to have created, and on the success of which they are taking a gamble.

    Disclaimer: I’m not a publisher; I am a published author, and yes, I have always signed the WFH contract. I don’t like it, it doesn’t feel good, but for what I do, it’s reality.
    Another disclaimer: I’ve never seen a comics contract in my life, and I’m not an attorney, so the above is my understanding of the situation, based in large part on the reading of your blog (for which I applaud you, BTW).

    Mind you, I love Ditko, Kirby, and everybody else who has given me hundreds of hours of enjoyment and I fully support them getting the appropriate share of whatever pie is being served. But the same reasoning that says you cannot retroactively declare something as work-for-hire should keep you from retroactively declaring it as NOT-WFH. If it was never specified, it was never specified.

    Thank you for listening.

    • trashfilmguru (Ryan C.) says:

      Thanks for your thoughts. If it was never specified as WFH, though, then it would seem to me imminently more logical that the rights should revert to the creators than the publishers simply because, once a publisher has done the, well, publishing, their connection to the material is over unless they have a copyright on it. If those copyrights have expired, as may very well be the case with much of this Charlton material, then that complicates any publisher’s claim to “own” it even further — especially if that company is out of business.No one’s talking about retroactively declaring so much as a single page as, in your words, “not WFH,” the argument is that it was never WFH in the first place, and therefore WFH rules should never have applied to it and shouldn’t apply now.If it wasn’t specified as work for hire, then why should it ever be viewed as such?

      • Volker Stieber says:

        That is a great question for lawyers to hash out 🙂 I do not have the legal expertise to know if WFH must be specified in this case, or if it is the “default” unless otherwise specified. Without having that knowledge, I am impelled to see logic in both sides of the argument. (And there may be yet another option not mentioned above that is the real right answer.) I’m hoping among your readership there is an attorney who can answer this. Anyone?

        I am really enjoying your blogs on this topic, because it’s thought-provoking and I enjoy a good personal crusade. Cheers to you, sir, for following your convictions.

        My personal, somewhat utopian belief is that there is/was an ethical way to make sure everyone benefits, but the world rarely seems to work that way.

      • trashfilmguru (Ryan C.) says:

        I’d like to hope that such a way forward exists, as well, but so far no one seems to have found it.

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