Robot 6

A reboot of intellectual property that favors creators

Tim O’Neil is proposing a hard reboot of all our thinking about intellectual property laws. Here are his four proposed rules, quoted in full:

Ideas belong to their creators.

Any permanent transfer of IP ownership from a creator to a corporation is and always has been morally wrong.

Permanent IP transfer under any circumstances is and has always been theft.

All money made by corporations from the exploitation of stolen IP is and will always be stolen money.

O’Neil admits from the get-go that there are situations in which it makes sense for a creator to sell his or her intellectual property rights, but he sees these rules as a goal to strive for, not a set of absolutes. If nothing else, they make for an interesting thought experiment, as they turn the old model of work-for-hire on its head.

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That is… not a very good idea, or even an illuminating ideal. It takes our image of Poor Heroic Abused Comic Book Creators Whose Work Later Makes Millions to be a normal case of IP, when it’s anything but. It only begins to make sense in domains where we can say “this person, or these two people, are the sole creators.”

Who “created” a big movie? Hundreds of people. Thousands. At a minimum screenwriters, directors, cinematographers, editors, and creative designers. Corporate ownership of the IP from the get-go enables them all to work together, for clearly-negotiated pay, and create something much bigger than they could have done if they were spending all day negotiating who retained inalienable ownership of which piece of IP.

Corporate ownership of patents allows for corporate investment in big research labs, where lots of scientists and engineers can work on big projects together. And the solo inventor who does not want to later become a marketing and production expert lives in the hope of eventually being able to sell his or her patent off to someone who can make more economic use of it.

Newspapers and broadcast news are work-for-hire. The corporate owner provides the infrastructure, cameras, travel budget, and often the pooled team of reporting for big multiperson stories. What could the alternative be?

Making IP inalienable and unownable by corporations makes it not very much like *property*, something one owns and can do with as one will, trading it off against other things. And it makes large-scale collaborative work vastly more complicated., probably impossible in many cases.

Intellectual property is not really property unless you can sell it.

Without permeant transfer, everything should just be in the public domain and available for all to use.

RegularSyzedMike

May 26, 2012 at 10:15 am

It looks like Mike Mignola has a pretty solid deal. He has creative control over his series as well as the movies. A creator not getting shafted does definitely seem like a possibility…even in comics!

@dean hacker – so if corporations can’t own it, no one can?

I love the usage of the word “moral” in these arguments. To encompass the entire industry you would include, in almost any transaction, companies that involve themselves in immoral activities every day of their existence. Business is usually shaped on those ideals to begin with. You’d also include creators that never finished assignments that they were contracted to do, or stole ideas from other creators. 90% of the comics created are often one-offs of another idea. This perfect “black and white” approach to creator rights would be swallowed up immediately in gray areas of opinion, lawsuits and subjective arguments.

The meeting between commerce and art will always reach an eventual impasse. Good luck.

So the Public Domain = Theft?

There are a lot of things wrong with this argument. Empowering creators is one thing, but depriving them of the freedom to use their properties as they see fit (and profit from them accordingly) doesn’t do that.

A list of principles like this isn’t in anyone’s interest, unless you add one very important fifth principle: copyright ends at death.

So Tim O’Neill says ideas belong to creators. Okay, fine. I can sympathize with this, because the idea of “selling” IP is dubious to begin with. An idea is still yours even if you give other people the rights to use and profit from it; all you’ve given up is the publishing or marketing rights. That’s not a fact that advocates of creator’s rights want to challenge; they just want a system where people can give over the rights to publish and profit from their work while receiving proper credit and being compensated fairly. That’s fine. That’s great. That’s something to aspire for.

But if you’re arguing that only the creator can own his or her ideas, and that that creator’s ownership is the only one that matters, then you can’t also argue that full transfer of ownership is wrong — because that’s what happens when a creator’s estate inherits their work. By these criteria, the Siegel and Schuster families have no rights to Superman of any kind because the men who created the character are dead. Whether an IP is owned by a family business or a corporate business is immaterial; it’s ownership by people other than the creator, and by Tim’s argument, that’s wrong.

But if copyright ends at death — not 50 years later, not 70 years later, but immediately — then maybe we might be onto something. Let’s say that the copyright for all of Jack Kirby’s characters had expired in 1994, and they entered the public domain. Marvel could still publish all their books as usual, but in this scenario, everyone else could do Fantastic Four and Avengers books too — including the Kirby family, who could commission somebody to do their own Avengers title at, say, Image. This would allow them to recoup money from those characters that rightfully should have been Jack’s when he was alive and working for Marvel.

Before you all scoff at the idea of instant public domain, consider this: Dave Sim is already doing it. He’s made legal arrangements so that, when he and Gerhard are dead, Cerebus becomes public domain. There are a lot of things I can’t respect about Dave Sim, or about Cerebus, but I can respect this: It’s Sim’s baby, and as far as he’s concerned, once he’s gone, none of us are qualified to speak for his characters — which means we’re all equally unqualified. That’s what the public domain is all about.

I agree with Tim that the American intellectual-property regime is FUBAR, but let’s first acknowledge why. It’s because corporate giants like Disney — a company whose IP has been built on public-domain fairy-tale stories — have lobbied for draconian legislation to extend copyright protection over and over again. It’s because trademark law is being used to do end-runs on the public domain, as ERB Inc. is trying to do with Dynamite’s John Carter books. Corporations have the money and the lawyers to screw over creators because they own the properties, but the problem isn’t corporate ownership: It’s ownership, period. A robust public domain empowers both creators and consumers, because it allows for a free exchange of ideas and a better cultural conversation. And I think that if consumers had the choice to support Marvel’s Avengers or the Jack Kirby Family’s Avengers, fans of the characters could get their Avengers fix without having to make such convoluted moral compromises with themselves.

I think this applies for creator owned work in comics and books rather than tv or movies.

Maybe if these were phrased in language less like an Orwellian mantra, they would seem a bit less deranged. Repeated use of “is and always has been,” etc., seems like overkill.

Meanwhile, this doesn’t even address the set of circumstances which has gotten people most exercised lately. If the Avengers belong to Jack Kirby (et al.) forever and ever amen, what happens when the creator dies? We take the ideas and bury them with the casket until the Resurrection?

I agree with the first tenet and I love the idea of having copyright last until about 70 years after the death of the creator. This extended copyright forever seems to be ridiculous and stunts the free flow of ideas. But at the same time it really doesn’t. A different version of the Avengers would just be The Avengers doing something different, instead of someone creating a superhero team that maybe was inspired by the Avengers but they aren’t the same because they can’t be the same characters, and it gives creators freedom to do something different rather than create Avengers fan-fiction for Image comics.
I think it best to educate everyone on work-for-hire and right to own. Some creators don’t want to own their work. Image exists, and there are countless creators who clearly don’t want to go down that road, clearly its not an easy road but the major problem with copyright in comics seems to be all this shady stuff that happened in the past. In those cases I think the copyright should be shared in all instances. Just split it. Let Marvel keep their Avengers and let the Kirby estate have equal rights to do with the characters what they like if they’re willing to give up any and all claims to previous funds. It isn’t exactly fair, nothing could be truly fair than to have given the creators their rights when they were alive but that can’t happen in a lot of cases and arguments can always be made about how they knew they were doing the work for pay and blah blah blah. I think the big companies should all just do what’s right and share in the profits. The creators were people, the companies are institutions. The same people who took advantage of the creators are not the same people who own DC now so I don’t understand how people want to side with DC. The fact remains that the creators are the same people, more importantly they’re people. DC is just a company that makes money off of other people’s creations, granted most of them legitimate work-for-hire but for their legacy characters.
For myself I will always side with the creators because they’re people, DC is a company. Companies don’t create characters people do.
But that’s just my opinion. I’m sure there’s a lot of lawyers who would like to make all kinds of things of this but they’re the ones who profit from all the litigation …

“In some ways it’s clearly fantasyland, yes. But it’s also right, and if you don’t feel it somewhere deep in your bones you were never paying attention to what all these characters really stand for.”

I’ll admit, I have no idea who Tim O’Neil is. (I assume he’s not the “American rally racing driver” @ http://en.wikipedia.org/wiki/Tim_O'Neil )

But the guy clearly has no idea what he’s talking about. Intellectual Property, and copyright in particular, was created as a means of enriching the public domain. The theory was, if we give creators the ability to make money from their creations (by preventing other from exploiting their work), it will allow the people talented enough to make something beautiful or interesting to do so, as opposed to spending all of their time trying to put food on the table. (And because we don’t discriminate when it comes to art, the people who make things that are ugly or boring are just as free to try and profit from their creations as well). In exchange for granting this limited monopoly on the ability to exploit a piece of art, we as a society get to have that work enter the public domain at some point (at which time everyone is free to build off of the original idea).

A transfer of IP, by definition, can never be “permanent,” because eventually it will enter the public domain. However, if we don’t allow creators to transfer their rights in their creations (presumably to someone more capable of monetizing that creation), we limit their ability to profit from their creations, chilling IP production and defeating the whole purpose.

And yet, the “creator ownership” is not as clear cut as Mr O’Neil (and several commenters) suggest. Using the comments involving the Avengers, might I inquire as to WHO actually CREATED the “Avengers?” Was it Kirby (credited with drawing the original books) or was it Stan Lee (credited with writing the original books)? Granted, both men were largely responsible for all the original Avengers characters in the first place Then, there’s the fact that the movie Avengers aren’t the comic book Avengers; in fact, the Black Widow and Hawkeye were co-created by Don Heck with ZERO input from Kirby. (As an aside, whose idea was it to change up the Avengers in issue 16 which introduced “Cap’s Kooky Quartet?” Was it Lee’s or was it Kirby’s or was it both men’s?)

Who ALL should get credit when new ideas get added to the creations? Should an artist and/or writer who alters an outfit get credited as “co-creator” and, if he/she leaves the character, should the outfit’s design become the creator’s property? Or if a writer and/or artist gives a character a major change in personality, possibly leading to a new identity, should that creator become a “co-creator” of the original character? (For the first, look at the X-Men’s “gradutation outfits” as posited by Roy Thomas and Don Heck, in the original series issue 39. For the second, refer to Nomad. The original Nomad, of course, was Steve Rogers and was ostensibly created by Steve Englehart and Sal Buscema. Do these changes mean that Thomas/Heck and Englehart/Buscema should be added to list of creators of the “X-Men” and “Captain America”?) When later writers/artists add new characters (ostensibly ones they “create” for the company)to teams, should these creators get credit for “creating” the ORIGINAL team? What about when you have a legacy character? Should the Golden Age creators of Green Lantern and Flash get credit for their Silver Age counterparts? Should the Ultimate characters be credited as having been created by the 616 characters’ creators (even if the 616 creators would be shocked or possibly outraged at some of the changes)?

Corporations are people, my friend.

While all of you make fair arguments, you are wrong.

There is never a need to sell your intellectual property (In the case of this conversation, your fictional work) to a major corporation. You own it. You prove it is viable. You market it and you get the heads turning.

Then you License the IP out to various sources. They in persuit of their license, then put forth the investment to make use of it in the capacity that they are allowed to. You meanwhile make money continually from it based upon the licensing agreement.

There are even ways to make it work for you in work for hire situations.

If you wish to disagree with what I have said, then all I can do is site George Lucas and his Star Wars IP. Which he has owned since he conceived it back in the late 60′s.
Charles Shultz never sold The Peanuts IP. Robert Kirkman never sold The Walking Dead. Instead he was approached by a major Publisher who instead offered him a full partnership. Just so they could add that strong property more completely to their banner.
Burroghs, Howard. They never sold their characters.

There is no need for anyone to depend on a large corporation to do anything anymore.
The Internet gives you worldwide promotion and distirbution.
Kickstarter can get you the funding for any project. Once it is in the public eye, response to it will open the doors you want opened.
So obviously I am in 100% disagreement with Jacob Levy.

Now in the case of a different type of property, Like a Rake that rakes and picks up the leaves for you Or some gadget, you can go the same way, or you can sell the idea to someone who has resources to take it to the next level.
I came up with an item for use on a beach, or for people who like to lay out in the sun. I found a company in Vietnam that could produce my item for less than .30 each unit. I sold them wholesale for $4.16 each. I sold about 20,000 units a year for four years. This was just something that I came up with on the side from my regular business. Actually looking to bring the item (Which I still own) back.
I have some stories and a number of comic characters I have created and I am working on. I won’t sell them.

And in return I’ll cite (not “site”) Gaiman vs MacFarlane as an image of what the world looks like when the unwaivable rule is that everyone retains personal ownership of their creations. And Walking Dead hardy seems like a good precedent, given the disputes that have already arisen over it.

If it turns out that Kickstarter and internet distribution so radically disintermediate all of cultural production that there’s no need for corporate ownership anymore (which I doubt), then it won’t be needed any more. That doesn’t mean that it was always unneeded, to say nothing of always having been immoral. For large-capital-investment multi-creator work, it’s made a lot of things possible that wouldn’t have been possible.

Schultz and Lucas, it should be noted, ended up having an awful lot of people do work-for-hire *for them*– and Lucas certainly eventually found it easier to do so through a corporate form (Lucasfilm). **He* retained ownership rights– but that’s very far from saying that every creator associated with seven movies and dozens of books and god knows how many of how much else retained ownership. John Ostrander and Timothy Zahn and Kevin Anderson have done work-for-hire for Lucasfilm as surely as John Ostrander has done work-for-hire for DC. And the prospect of being able to get all that spinoff material produced helps make it attractive enough for marketing specialists like studios to do what you want them to do.

And– since the original post talked about all IP, not just copyright– its worth reiterating that corporate ownership of patents is by now an absolute necessity for technological innovation. If every innovator had to work out license agreements with every patent-holder of every component or prerequisite every time, rather than just letting one owner buy them all up, the transaction costs would be crippling.

The original ideas are naive and unrealistic. Here are some slightly more realistic, slightly more concrete things I’d like to see Marvel and DC do to help creators.

1) Help the Jack Kirby estate start a physical museum dedicated to Kirby and comics art.

2) Donate a crazy amount of money to the Hero Initiative.

3) Allow creators/co-creators to produce and sell art, toys, and other non-comics memorabilia at comic conventions and on their website as long as the items clearly state (not authorized by ).

4) If you have ever been credited as writer or artist for Marvel and/or DC you get two free tickets for every film based on one of the company’s properties. (I was going to say creators should get tickets if their creation is in a movie. But who would you give the Spiderman 3 tickets to for creating Venom? It’s easier just to give everyone tickets.) Or have special screenings where creators show up and make an event out of it.

Not perfect but better than nothing. What else?

I always find it amusing when a comic book company puts out a book about “corporate owned heroes.” The spin is almost always that the heroes are something less than they should be, or that they are selling out and not living up to the true calling of being a super hero. All this,of course, in the face of the fact that most super heroes seem to exist only as corporate owned merchandise. That’s irony, right?

I think the point was that companies like Marvel, DC, TokyoPOP and any others that demand possession of IP as a condition to being published are themselves taking an unreasonable hardline approach which is often taken for granted . Rather than giving them the benefit of arguing in reaction to that stance it is better to establish a strong counter-position that fundamentally challenges their assumptions and puts them on the defensive. Basically saying, “hey! You don’t have a right to do this. What are you trying to pull?” Change the framing of the conversation and from there work out actual nuanced and pragmatic goals and solutions.

In a way it seems to be an argument for a sort of comics industry Glass–Steagall Act. Publishers be publishers and not IP-hungry multi-media mega-corporations.

i don’t know that i agree with the “rules”, but

“Making IP inalienable and unownable by corporations makes it not very much like *property*, something one owns and can do with as one will, trading it off against other things. And it makes large-scale collaborative work vastly more complicated., probably impossible in many cases.”

hmm. i remember when they couldn’t make any harry potter films. that was a real shame.

Rowling of course sold the film rights to the corporation Warner Brothers– not loaned, not licensed, but sold. And that enabled hundreds, probably thousands, of other people to collaborate to create seven films, on a work-for-hire basis, with no resulting disputes over who owned which parts of the movies.

Her initial ownership copyright ownership meant that she made a lot of money from the sale of those rights that, say, Jack Kirby never had the opportunity to make. But she still sold the rights, as the “rules” say is immoral, and that allowed the subsequent collaborative stage of work-for-hire.

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