Robot 6

Creators’ families’ rights: merit vs. inheritance

A lot of the logic in this anonymous comment about creators’ rights doesn’t track, but he or she makes a point that caused me to stop and think. A large part of the creators’ rights conversation is about being paid appropriately for something you made. In other words, people should be compensated financially based on the merit of their work. I’ve always assumed that compensation should also apply to the creator’s family when the creator is no longer alive to collect it, but the commenter attempts to poke holes in that assumption.

He or she suggests that merit-based pay and inherited finances are diametrically opposed values. I disagree, mostly because of the way families work. Sharing wealth is one of the things that families do; if everyone in the family received only the money that she or he worked for, children would starve; to say nothing of husbands or wives whose full-time jobs are managing the household. That’s a ridiculous proposition because merit isn’t based solely on what one does for a living. My son merits being taken care of simply because he’s my son and my wife and I owe it to him. But, even though I reject that inheritance and merit are in opposition to each other, the commenter does have me thinking about the limits to which a creators’ heirs should be able to exert their rights.

As I was thinking aloud over the ERB Inc. vs. Dynamite case on my blog and Google+, I read several comments that were directed negatively toward the estate of Edgar Rice Burroughs. I still haven’t figured out how I feel about that whole deal, but what surprised me was that the comments weren’t directed at the odd and inconsistent tactics ERB Inc. has used, but simply at how the family is now several generations removed from the original creator. Setting the actual law aside for the purposes of this discussion, for how long should a creator’s family morally be able to profit off that creator’s work?

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This point is further complicated by the importance the public domain plays for creativity. Art is communication as well as commodity. It’s one thing to fence off a commodity as private property, but communication cannot be so bound and remain communication. Our own creativity emerges not from some pristine, autonomous inner genius, but from the collective dynamics of communication and shared experience. Declaring an idea, character or plot to be private property in perpetuity undercuts one of the reasons art exists in the first place: to transcend our narrow little individualities by creating a community of communication.

I don’t think it’s crazy to support the rights of the creator in their attempt to be compensated. Arguing that several generations of family members, decades removed from the event in question deserve to be financially compensated is a very different proposition. The argument comes down to a moral one, and civil law suits are poor places for that distinction.

Is a company obligated to make sure that individuals, generations removed from a creators contributions, receive financial rewards? I don’t know but I think probably not.

I’m uneasy about the length of copyright myself. I don’t know if it’s too long now, but it sure seems like it’s going to get longer and not shorter, and if it isn’t too long now, it will be. And I don’t see why creators’ heirs should reap huge benefits from something they didn’t do, although I don’t mind if they get something out of it.

But then, that’s not what most of the cases under discussion are about. If Siegel and Shuster and Kirby had cashed in big time when they first did the work, there wouldn’t be as much outrage on their side now. But they didn’t, and a lot of people feel like Marvel and DC should pay up later if not sooner, and since the heirs are the only ones around to benefit from it, then let them benefit from it.

To me it sort of starts and ends with the contract that was signed and what it says.

To me it sort of starts and ends with the contract that was signed and what it says.

Your values don’t have to be those of the legal system, though. You and I are perfectly capable of looking at a contract and saying, “this was a bad deal, and the party of the first part is getting stepped on.” Just because somebody was unwise enough, or desperate enough, or deceived enough, to agree to a bad deal doesn’t mean that we lose all powers of judgment.

I’m not really FOR heirs reaping the rewards of their ancestor’s works decades down the line, but I don’t see how suggesting they should belong to the corporations over the family is any better. If I had to choose one over the other, nine time out of ten I’m most likely going to be in favor of the family.

“Your values don’t have to be those of the legal system, though. You and I are perfectly capable of looking at a contract and saying, “this was a bad deal, and the party of the first part is getting stepped on.” Just because somebody was unwise enough, or desperate enough, or deceived enough, to agree to a bad deal doesn’t mean that we lose all powers of judgment.”

This is what gets me. I don’t really understand how people equate “legal” with “fair” or “just” or “moral.” Well, I do have some ideas, but it would involve some assumptions and generalizations, but I’m fairly certain I’d be on the right trail.

I am mildly amused at being turned into an an anonymous commenter, though I believe I was technically posting pseudonymously using a name which I have consistently employed, including at CBR blogs, for years now. For what it’s worth I mostly use the name out of habit more than any desire to be either anonymous (or pseudonymous) and am in fact a real person with a real name, traditional gender and everything. Of course, you have to take my word for that, but then we have to take the word of “Michael May” on such matters, also.

I am mildly honored at my comments being considered sufficiently thought-provoking to prompt a further post. I politely disagree that “a lot of the logic” in the comment “doesn’t track” for reasons which aren’t specified, as well as with the specific conflation of the appropriateness of inherited wealth with whether or not children (or anyone) should starve simply because our economic system does not distribute wealth directly to them in the form of a paycheck. I don’t believe May’s children should starve, and would hope that he feels the same even about children who are not his own. Personally I just don’t see a relevancy for close kinship in this matter; an orphan with no family at all should not starve, nor should a child whose parent or parents are simply bad people. I don’t believe that having a highly-regarded parent, who made noteworthy contributions to the world, has any effect for or against someone’s right to freedom from starvation, poverty, etc.

So, then, my own view on the question which May has commendably raised as a point of discussion is a very-qualified “never.” Which is to say that, in an ideal world, I don’t believe that May or I or Kirby’s children or Borroughs’s great-great-grandchildren or a starving six-year-old unrelated to any of us has a direct moral right to the profits from intellectual property created by someone else. I don’t believe anyone has that right aside from the person or persons who actually created the work, and/or the person, persons or organizations to whom the creator(s) legally assigned part or all of the rights. If the creator passes on some of those profits to family members while alive, obviously that’s entirely normal and appropriate; if he or she transfers the right to those profits posthumously via his or her estate plan, that’s fine also (at least, assuming that intellectual property rights should ever outlive the property’s creator, which is a whole other issue that we don’t want to get into just now). If he or she doesn’t do so, then his or her family members should still have protection against starvation and poverty provided by redistribution of society’s total wealth, as should anyone else regardless of what their ancestors did or did not create, because that’s what a good society does.

That sais, PLEASE NOTE that this is what I believe should be the case in an “ideal world,” and that obviously we do not live in an ideal world. In America, we have reasonable measures for the general welfare and it’s not like the 19th century when Ulysses Grant could semi-legitimately worry that if he didn’t finish his memoirs before he died, his family could end up without food on the table. But, this still isn’t a utopian workers’ paradise, and I think it’s natural for people to see some particular intellectual property earning enormous revenues and feel that at least some of them should be making life easier for descendants of the property’s creator, though I also think this reaction is mostly based on sentiment rather than any carefully-reasoned moral logic, which is probably why May notices the support for descendants’ claims evaporating the further-removed those descendants are from the creator. Personally, I think that even a special “Ulysses Grant” exception which protects the right of an intellectual property creator’s family to earn profits from the IP shouldn’t need to be longer than 20 years; even if someone dies shortly after becoming a new mother/father AND writing what goes on to become a bestselling book, e.g., that will get all of his or her children safely up to adulthood at which point I think it’s fair to suggest that they can work for a living like I have to, unless they are disabled in which case, again, they should be cared for regardless of their parentage and, fortunately, our society does a fairly decent job of that at least.

If we’re going to posit that copyrights long enough for inheritance to be a regular issue are either a good thing or impossible to dispose of, then I see absolutely zero reason for the creator’s successors to have any fewer rights than a corporation whose ownership and staff has turned over enough to effectively be a different entity. No, corporations don’t often pass away all at once and pass their assets on like people do, but today’sDC is effectively the descendant of the company Siegel & Shuster did business with.

That we’re talking about heirs, sometimes multiple generations removed from the original creators, is in some ways absurd. But it’s a direct result of extending copyright to the point where it can so often exceed the life of the creators, and I see no moral reason why a company that is now filled with new people deserves more rights than a family in the same situation.

It’s a moot point. Copyrights in this country will never expire. Ever. Disney will continue to have copyright law extended in the years and decades to come where nothing will ever enter public domain.

I’d like to disagree with Mr. Waid’s prediction but I’m sure not going to bet money against it. Darnit.

I don’t believe heirs should have any rights for something that their family members created. When does it end? 200 years from now should say Bendis’ great great great great grand kids be allowed to collect on a finally released Powers movie? I think that any compensation should only be paid to that creator only. No family member signed the contract.

I feel what wraith is saying on this one.

@Matt: Given that we are talking about Jack Kirby, I have to ask…WHAT contract?

At any rate, my feeling is this: ideally, copyright wouldn’t have been extended in ’76, Captain America would be public domain by now, and neither the Kirby heirs nor Marvel could lay claim to him.

But copyright DID get extended, and under the circumstances, I think the Kirby family should get the same deal Stan Lee gets. Yes, Jack’s gone, but if he’d been compensated fairly while he was alive, he’d have left that money to them.

The Burroughs case muddies things pretty significantly because it blurs the issues of copyright and trademark. Burroughs’s actual writing is public domain, but his titles and the names of his characters are not. The heirs are, to my mind, abusing the trademarks to infringe on the public’s right to use the works that they have a right to use under the public domain.

Start looking at Robert Howard and stuff gets even muddier. Just how much of Conan is public domain? Nobody’s risked trying to find out as yet.

@Joe H

Maybe because laws are based on moral norms and decided-upon ethical baselines

I think copyright lasts too long. The author’s life plus 20 years would work fine for me.

Though not so fine, as Mark points out, for Disney.

I’d like my children to be able to inherit what I create; part of the reason I’m doing it is to provide for them. If my so-far nonexistent grandchildren benefit from a library of Busiek creations/co-creations, great. My great grandchildren? Well, at that point I’d think they should be inheriting money, not rights.

But when the rights vanish, they should go into the public domain, where everyone can use them, just as I can use Dracula and Frankenstein and Natty Bumppo today, if I choose to, and so can anyone else. They shouldn’t be held by a corporation.

kdb

If big corporate entertainment companies can continue to profit off a creators work long after their demise without any role in the creation, it seems to me if we’re restricting the question to one of morality, then the creator’s descendants have to have at least some claim to do the same. As people up the thread have pointed out, the moral question is kind of moot given the legal and economic issues involved. For whatever reason comics fans seem to be willing to forgive continued corporate exploitation, but as soon as someone with an actual connection to the creator wants their due they are somehow more out of line.

I think there’s also the issue of these characters being a cummulative, cooperative effort. These characters are worth what they are today not just because of the material that the original creators did, but from all the folks who picked up the baton and kept the characters going over decades. There’s few examples of an obscure character being plucked out and made into a multi-million dollar juggernaut. The Avengers film isn’t just based on Lee and Kirby’s early work, but the dozens of other creators who contributed to the concept. While that may not matter in a legal sense, I think that matters in an ethical sense, if you’re carving up who is owed what. The Avengers could’ve failed after Lee and Kirby left their respective positions, and langusihed in obscurity, but others stepped in to keep the concept going — shouldn’t all those folks be entitled to something? Don’t get me wrong, Kirby should get something if for nothing else that he designed the visual look of many of the key characters, the core design elements of which are still being used today — in many cases the exact versions that came from his pencil decades ago.

These characters have their own mythos that has made them so legendary and marketable, and that mythos wasn’t completely and totally the effort of the original creators. Take Superman — the concept of Kryptonite came from the radio serial, and was adapted into the comics. That’s a pretty key part of the Superman mythos that no matter what the medium or interpetation, comes into play at some point. It’s the one known substance that can kill Superman and was the core element of Lord knows how many plots over the years. If you’re going to start awarding cash to those responsible for the mythos, it doesn’t seem fair to just start and stop with the folks who did the first stories, because elements get added over time that create the mythical qualities that allow them to live on.

All too often the person or people who create a character isn’t the same one who does the ‘definitive’ version or work on that character, the one that cements the character in people’s minds. Easy one: Miller’s Daredevil, which came long after the debut but the elements and themes he introduced are still in play today. Old school fans may remember DD pre-Miller, but for most of us, those stories are a core reason the character is interesting and relevant.

It’s a messy issue with no real, clear-cut solution other than to try to change the industry going forward so that today’s creators can avoid these situations, and to educate the younger generation so they know where these characters came from — that the number 1 on the cover really doesn’t mean it’s the first appearance. Maybe a solution would be to do some sort of specific projects that would pay tribute to the early work, reprinting it or reinterpeting it in a modern context, and have the profits from those go directly to the creators or their heirs. Trying to pressure the corporations to start flinging royalty checks or settlements is a dead end, they’re going to fight those with nearly unlimited resources and in many cases the law, unfortunately, is on their side. It would be better to find a way to celebrate the creators and their work and provide some sort of compensation that way than to spend all this time in a courtroom butting heads, or calling for boycotts or other forms of protest.

@outofideas:
Ah, yes. Moral norms. Those have always treated people fairly in the past.

And doing a pretty bang-up job of treating everybody fairly right now as well, I should add!
Good on moral norms and all of our current laws for making everything fair and just.

@Mark Waid
Well, my friend, then there’s only one thing that must be done–the mouse, he must die.

@Mike Leonard
Are you Mike Leonard the newscaster? The one who had a GI Joe figure’s face modeled after?

I should probably be asking Mark Evanier this, and it might have come out in some of the trial information, but I’m curious. I’m going off what little I’ve read online and Men of Tomorrow. Ultimately this doesn’t matter either, not in a legal OR a moral sense. This is just my own curiosity, so please if anyone knows or if there’s anything documented, humor me.

I know later in his life Kirby was a huge proponent of creator’s rights (his own rights). He’d been in the “industry” for 20 years in the early 60s, though, when he was actually creating/co-creating the Marvel characters. He knew how things worked. He was a businessman. He also wasn’t a kid at this point.

While he was in more of a staff/editorial position than just work for hire during this time, do we know at all whether or not he thought he was going to own a share of what he was creating?

What he deserves/d notwithstanding, I have a hard time believing that a guy as sharp and experienced as he was thought he’d be owning a part of the Fantastic Four or Hulk.

But again, I’m just going off of what I’ve read and anecdotes, and like I said, it REALLY doesn’t matter. I’m just curious.

1) How does an estate which owns copyrights and trademarks created by long-dead relatives differ from a corporation which owns copyrights and trademarks created by long-dead creators?

2) Nice use of Uncle Scrooge to illustrate the article. Disney lobbied to get the copyright span lengthened. Disney was one of the last companies to give creator credit on their comics. Disney never returned artwork, and if they do, the artist cannot sell the original artwork. Oh, and royalties are only paid on the first printing of the work, anywhere in the world. Once Denmark or Germany or Italy or wherever publishes the work, any other licensee can reprint that work royalty-free.

As long as a corporation benefits from keeping an artwork in use and under copyright, should not the heirs of the work’s creator also benefit? A corporation cannot die, so why should the creator’s death matter?

On the other hand, if all rights to art reverted to the creator’s heirs upon the creator’s death, corporations that benefit from the work of artists might have a much bigger stake in providing exemplary and affordable healthcare to artists.

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