“Just Pay Ditko!” Part Twelve : Freelance Work Vs. “Work-For-Hire”

Posted: September 4, 2013 in comics
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Let’s be honest — nobody in comics history has ever drawn people “on the brink” as well as Steve Ditko. Alan Moore has opined that his characters consistently look like they’re either about to have a complete nervous breakdown or a staggering, life-changing, moment of revelation. I can definitely see that, but I dunno — maybe those harrowing portrayals of folks whose world could implode at any moment just came naturally to a guy who  spent so many years immersed in the so-called “work-for-hire” system, which is more than enough to at least fray, if not completely shred, anyone’s nerves. Yeah, okay, the picture reproduced above is from a Marvel story that was published reasonably early in Ditko’s career arc, but still —

Think about this for a minute, comics fans : the pros who put out the material we enjoy have no company-provided health insurance. No 401K. No dental plan. And, unless they’re locked down to an exclusive contract of some sort with a publisher, no guarantee that management won’t sack ’em next month and replace ’em with some over-eager kid who just sent samples in last week and who is willing to work for half the page rate of the guy they’re going to be replacing — with,  in many cases,  the guy being shown the door also being the very artist who, ironically, inspired our keen and hungry youngster to get into comics in the first place.

People love to paint Steve Ditko as being some kind of recluse or hermit simply because he works exclusively with Robin Snyder these days, but I would submit that if, as a freelance comic artist, you’re able to find one — just one — publisher who treats you with honesty and integrity at all times, then frankly you’d be crazy not to stick with them for the rest of your career. You’re not going to get fair treatment from “The Big Two” — that’s a given — and sadly, the smaller publishing houses, who you’d at least think would see the value in giving creators a fair deal, are increasingly aping Marvel and DC’s business practices and “ethics” since they figure that’s the surest path to long-term commercial success.

Are you depressed yet? ‘Cuz I sure am.

And now, with the advent of the booming reprint industry, artists like Ditko can be assured than publishers are going to profit off their creative genius not once, but twice (at least), while they get even less for their trouble the second time around than they did the first. Consider — if you’re enjoying a volume of Fantagraphics’ Steve Ditko Archives, which is currently running his 1950s Charlton work, or a book like The Art Of Ditko  from IDW/Yoe Books, which showcases much of the same material, all the artist is ever going to receive for these books, which showcase his name prominently on the cover and sell based completely on the strength of his work, is the six to eight bucks a page he got paid for drawing them in the first place. If you’re wondering why I keep plugging along with this series, there’s your answer right there. Surely this situation has to strike plenty of folks as being just plain ridiculous.

Still, I hear you out saying to yourself out there  “yeah, it sucks, but what can ya do? It was ‘work-for-hire,’ after all.”

Except, of course, as we’ve previously examined here, it may very well not have been, and even if it was, that’s a decision that was made retroactively. No single comics creator in the 1950s and ’60s was even aware of the term “work-for-hire,” much less the terms of “work-for-hire.” And in ensuing decades, a widespread myth (that benefits no one but the publishers, so you can be pretty sure from whence it originated)  has taken root in comics circles that freelance work and “work-for-hire” are by and large the same thing.

To which I offer a four-word rebuttal : Just. Not. The. Case.

The distinction between standard freelance work and “work-for-hire” is one that all comic fans would do well to educate themselves on, since it plays a part in the (hopefully ongoing) legal struggles between Jack Kirby’s estate and Marvel. While numerous other details swirl around the periphery of what separates the two forms of work, the main one to concern ourselves with is simply this, and it’s something we’ve mentioned before but which I repeat here for emphasis : if those supposed “work-for hire” contracts that creators signed “back in the day” said nothing about original art — and they didn’t — then they weren’t true “work-for-hire” deals. All the publishers were buying was the right to publish the work, not the actual, physical work itself.

Yes, they’re freelance contacts. Nobody’s contesting that. Steve Ditko. Jack Kirby. Wally Wood. Bill Everett. Carl Burgos. Don Heck. All those original Marvel artists who ushered in the so-called “Silver Age” of comics were all freelancers. So was everybody working for DC, Charlton, and other publishers at the time. But not a one of them signed an agreement that specified their efforts as being “work-for-hire,” even though they’re finding themselves bound by the terms of WFH now.

How is that even sensible, let alone ethical?

I’m no legal expert by any stretch of the imagination, but even I know you can’t tack on contractual terms to a previously-signed agreement after the fact. “We meant to include that language in the contract, we just didn’t do it” won’t wash in any other contract law situation, yet it’s exactly the position that dozens, even hundreds, of comic pros find themselves in. And when work that may very well not have been WFH is reprinted and the creators realize no payment from that while the publishers profit a second, third, or fourth time around (how many times, and in how many formats, have Steve Ditko’s original issues of The Amazing Spider-Man been packaged and sold, anyway?), at what point will all the gushing introductions by Stan Lee and his ilk finally be seen by fans as the hollow and empty rhetoric they are? No amount of flowery bromides can mask the stench coming from an expensive hardback collection whose very existence guarantees that the already-poorly-compensated artist is just being swindled one more time.

Comments
  1. Volker Stieber says:

    Below is a link to the Second Circuit Court of Appeals decision regarding work-for-hire in the case of Marvel vs Kirby. Fascinating reading.

    http://articles.jmbm.com/2013/08/14/marvel-prevails-in-copyright-termination-case-famous-artist-jack-kirby-found-to-have-created-his-comic-drawings-as-a-work-made-for-hire/

    Upon reading this, I am most struck with how law and justice are not necessarily synonymous.

    Here is a long article with much detail, including some fascinating info about timelines, changes in the law, etc.:

    http://www.planetslade.com/superheroes1.html

    Upon reading this, I am again struck with how law and justice are not necessarily synonymous.

    It also seems the greatest gains have been made by attorneys, who get paid by the hour. No disrespect to that profession, but of course they will soldier on.

    So…after reading your blogs (and lots of other writings since I became aware of this back when the Comics Journal first published its giant Kirby interview in 1990), my question to you is:

    What now ?

    • trashfilmguru (Ryan C.) says:

      Thanks for the links, they’re much appreciated! Fascinating reading indeed! As for “what now?,” well, I think we need to move away from the “work for hire” system altogether as far as current comics output goes. It’s morally indefensible any way you slice it, even if, as you correctly state, law and justice are often two very separate entities. It’s going to be tough since there will always be hungry young “talent” eager to take anything Marvel and DC offer — I could even see them “leasing out” their lower-selling titles to up-and-coming creators who are willing to actually pay for the “privilege” of drawing an unpopular series like, say, Firestorm or Morbius, The Living Vampire, and something of a “pay to play” system coming in comics. The big selling point will be, of course, that if the work is well-received, it “could lead to paying gigs” on popular titles like Batman or Spider-Man. laughable as it sounds, it’s happening in other freelance fields at the moment like music, photography, art, and all forms of writing. The internet has resulted in a huge glut of desperate creators looking for a “big break” that will ever come. Short-sighted and greedy as Marvel and DC are, I would think this sort of bottoming-out will occur within a few years, and the quality of their product will go down even further, resulting in even lower sales,

      After that, when most books are down to 10,000 or fewer units being moved each month, “The Big Two” and their smaller imitators will be truly desperate, and find that the only way to lure top talent back from places like Image is to offer full creator ownership, and maybe even incentive packages that include things like health, dental, and vision insurance.

      As far as getting any sort of fair play for older creators goes, our best bet is to hope the Kirby lawsuit and the Siegel/Shuster suit gets placed in the hands of a jury, who might be more sympathetic to their claims. The judges are proving to be shills for the corporations. So we need to keep writing about this stuff, telling our friends, posting on facebook about it, etc. — if just one of these suits prevails, it will blow the whole “work-for-hire” system wide open overnight and reveal it to be the house of cards that it is.

      • Volker Stieber says:

        Forcing talent to “pay-to-play” is morally reprehensible in any industry. Granted, an unestablished newbie should not expect the same perks and benefits as a seasoned big-name pro with an established track record of sales, but there has to be a sustainable business model where everybody can make a fair profit on a quality product.

        In many other fields, compensation is a base with a performance-based bonus system, and new talent is nurtured to the mutual benefit of employer and employee. If a print-on-demand model is financially competitive with a large press run that results in unsold stock, I could see that actually work. Give MORBIUS to a new young team (with an established editor required for cross-platform brand maintenance) incentivize them to make great comics, then let the market take over and pay a percentage of what was printed/downloaded.

        Yes, that hits the comic book stores. Everything has a downstream effect. But what if the store had shelves full of one sample copy of each book and a leased print-on-demand machine? You browse like you always do and get a fresh copy popped out of what you choose. No more unsold backstock and 25 cent bins for the store, more shelf space for interesting product. Imagine if they could generate a 4-page “teaser” to entice readers to buy the whole issue!

        (Oh wait, that kills the CGC market. If you can make infinite print runs, the artificial value assigned to last week’s Punisher issue # 49,365 that got slabbed as a 10.0 is zilch. Too bad, so sad–they can focus on the core business of certifying real collectibles, like Avengers # 1.)

        Creatorship can become a multi-tiered model. For example, if you create for an established title (e.g. Spider-Man) where there are franchise/brand needs, you get paid based on sales; after a certain amount of sales that establish you as viable, you can create your own title with the big publisher doing distribution and marketing and you retain ownership. Again, with print-on-demand that would actually work.

        Of course, my typing this won’t make it happen. And I don’t work in the industry, so I’m just giving my unwashed opinion.

        But I do know about healthcare and insurance…and I’m not going there today 🙂

      • trashfilmguru (Ryan C.) says:

        Well, a lot of what you suggest actually sounds feasible to me. Which probably means, of course, that Marvel and DC won’t do it. The whole print-on-demand concept would negatively affect comic shops, sure, but if they had a machine right in-store to do it, that would hurt less than Marvel and DC’s current transitioning to digital comics will do.And the digital transition kills the collector’s/speculator’s market even more than print-on-demand, as well, since nobody’s going to pay top dollar for any back issues that can be downloaded at cover price. Think of this — you could not only have a print-on-demand machine, you could make the print-on-demand option available only for 30 to 60 days after the release date, so it’s not infinitely available.

        The sliding-scale payment based on sales in still in use at “The Big Two,” as far as I know, in the form of gradually increasing royalties. It’s nowhere near as lucrative for creators as it was in the ’90s, but that’s because the speculation bubble burst and has never recovered, with top-selling books these days lucky to crack even 100,000 units sold.

        As far as creator ownership for “Big Two” publications goes, again, they’ve done a lackluster version of what you’re suggesting. Marvel has their “Icon” imprint where they allow top creators with a proven track record to own the copyright on their books and characters, but they have put zero effort into promoting and maintaining that range of books and most sell under 10,000 copies. Rumors of its demise have been circulating for some time. Likewise, DC has their “Vertigo” line, which once was a big brand but now appears to be on life support, and the creators are only given a half-hearted “ownership” stake there. Most of their deals stipulate that the creators own the characters and names, but DC/Vertigo own exclusive rights to publish the work in perpetuity and also own any and all licensing of the work to toys, films, television, books, etc. Since those licensing deals tend to be where the real money lies, that’s not such a great deal for the writers and artists even if they nominally “own” the work.

        By and large I think your suggestions have a lot of merit — but Marvel and DC are too greedy and short-sighted to see things like you or I might.

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