From the quarter bin to the slabbed copy sold at auction, sales of used comics are an important factor in the collectors’ market. Many a childhood comics habit started out with with secondhand copies picked up at thrift shops or garage sales for a dime, and a hefty area of the floor at every comics convention I have been to has been set aside for dealers with tables and tables of longboxes filled with old issues.
That’s one comics tradition unlikely to translate to the digital era: A federal judge has ruled the doctrine of first sale does not apply to digital files. In this case, they’re music files, but the case is being closely watched by book publishers.
The doctrine of first sale basically says that once you’ve bought a copyrighted product, you can re-sell it, rent it out, lend it, or do whatever you like with it — except reproduce it — without any obligation to the copyright owner. This allows comics shops to sell used comics and libraries to lend out graphic novels without having to pay royalties, but for obvious reasons, its application to digital products is problematic.
The Jewish Telegraphic Agency reports that Kippa Man owner Avi Binyamin agreed to pay each company $17,000 for infringing on their trademarks; they’d originally sought $27,000 in damages.
Binyamin told The Jerusalem Post in September that he doesn’t produce the yarmulkes, but merely sells them like many other shops in the area. “They make them in China, I just bring them,” he said. “There are 20 stores on this street, they all sell the same thing,” Indeed, the newspaper reported that nearly every store on Ben-Yehuda Street displayed yarmulkes outside. However, Kippa Man is the most successful and best known outside of Israel.
The Times of Israel then characterized the lawsuit as “the first move by Marvel against what it perceives as widespread copyright infringement in Israel, where products featuring its copyrighted superheros are commonly sold.” Lawyers for Marvel and Warner Bros. told the Israeli newspaper Maariv that the companies will pursue legal action against other small stores that violate their trademarks.
I touched base with Chuck Austen a few weeks ago, when Tokyopop put a selection of its original English language (OEL) manga up for sale on its revamped website. At that point I checked in with a couple of former Tokyopop creators, and I ended up having a fascinating e-mail exchange with Austen in which he said he made more money on one of his prose novels simply by selling it on Kindle than he would have made from a movie option. That caught my attention, and I asked him if he would write a guest post for Robot 6. Here’s what he had to say, and while all opinions are Chuck’s own, I think at the heart of it is some good advice for everyone who has ever done something they regretted later.
My name is Chuck Austen. Many of you have probably heard of me, and very rarely in a good way. But that’s one of the reasons I’m here.
Brigid asked me to address my fellow Tokyopop alums — people who created OEMs for that ill-fated company and, like me, watched their properties mistreated, ignored and ultimately thrown into ownership limbo, properties for which we will never retrieve our rights, worlds we imagined into being that we’ll never be able to create additional stories for.
The reason my past history is important is because I am probably the most extreme example of someone who “lost everything” and so am uniquely qualified to tell you this:
Legal | A federal judge on Friday denied DC Comics’ bid for sanctions against the attorney for the heirs of Superman creators Jerry Siegel and Joe Shuster, finding that Marc Toberoff made “no deliberate attempt to mislead” during the discovery process and, perhaps more importantly, did not interfere with the publisher’s rights to the Man of Steel when he allegedly inserted himself into settlement talks in 2001. [The Hollywood Reporter]
Legal | Stan Lee will be deposed this week by lawyers representing Stan Lee Media in its multi-billion-dollar lawsuit against Disney involving the rights to the characters the legendary writer co-created for Marvel. Stan Lee Media, which no longer has ties to its namesake, claims Disney as infringed on the copyrights Iron Man, the Avengers, X-Men and other heroes since 2009, when it purchased Marvel. The long, tortured dispute dates back to a sequence of events that occurred between August 1998, when Marvel used its bankruptcy proceedings to terminate Lee’s lifetime contract, and November 1998, when Lee entered into a new agreement with the House of Ideas and signed over his likeness, and any claims to the characters. Stan Lee Media has long claimed that on Oct. 15, 1998, Lee transferred to that company the rights to his creations and his likeness. SLM asserts in the latest lawsuit that neither Marvel nor Disney, which bought the comic company in 2009, has ever registered Lee’s November 1998 agreement with the U.S. Copyright Office. [The Hollywood Reporter]
Despite a January appeals court decision that seemed to signal an end to the nearly decade-long battle for ownership of Superman, the family of co-creator Jerry Siegel still holds out hope for victory over DC Comics.
Overturning a 2008 ruling, the Ninth Circuit Court of Appeals found Jan. 10 that the Siegel heirs had accepted a 2001 offer from DC that permits the publisher to retain all rights to the Man of Steel (as well as Superboy and The Spectre) in exchange for $3 million in cash and contingent compensation worth tens of millions — and therefore they were barred from reclaiming a portion of the writer’s copyright to the first Superman story in Action Comics #1.
That decision came less than three months after a federal judge determined the 2003 copyright-termination notice filed by the estate of co-creator Joe Shuster was invalidated by a 20-year-old agreement with DC in which the late artist’s sister Jean Peavy relinquished all claims to Superman in exchange “more than $600,000 and other benefits,” including payment of Shuster’s debts following his death earlier that year and a $25,000 annual pension for Peavy.
The Ninth Circuit rejected a comic creator’s $60-million claim against NBC Universal and the producers of the television series Heroes, determining there was no evidence of copyright infringement.
Jazan Wild (aka Jason Barnes) sued the network and Tim Kring’s Tailwind Productions in May 2010, accusing them of stealing the “carnival of lost souls and outcasts” depicted in the fourth season of the drama from his 2005-2006 comic series Jazan Wild’s Carnival of Souls. In his original complaint, he laid out numerous side-by-side comparisons that he contends prove the TV show’s traveling carnival is “virtually identical” to the one in his comic series.
However, in May 2011, a federal judge found that Heroes and Carnival of Souls “differ markedly in mood and setting, and weren’t substantially similar works, and therefore Wild had failed to prove his claim for copyright infringement. In Wild’s appeal, he insisted the judge erred by using too rigorous of a test to determine infringement, arguing that the wide availability of his comic meant he had to meet a lower standard of proof.
Legal | Forbes profiles Michael Wolk, a lawyer who’s organized the financial backing for Stan Lee Media’s prolonged, and so far unsuccessful, multibillion-dollar lawsuits against Marvel and Disney over the rights to the characters co-created by Stan Lee. Wolk’s primary investor is Elliott Management, one the nation’s largest hedge funds. SLM, which is no longer affiliated with its co-founder and namesake, asserts Lee didn’t properly assign ownership of the works to Marvel, and that Disney didn’t file its Marvel agreement with the U.S. Copyright Office. “We are in the right here,” says Wolk, who’s not actually a Stan Lee Media shareholder. “No court has ever addressed or ever decided who is the owner of the characters — all of the prior litigation got dismissed for reasons that have nothing to do with who owns the characters.” [Forbes.com, via The Beat]
A federal judge on Thursday dealt a crippling blow to a custom carmarker, siding with DC Comics in a ruling that declared the Batmobile isn’t merely an automobile but “a copyrightable character.”
The publisher sued Gotham Garage owner Ben Towle in May 2011, accusing his California-based business of violating its trademarks and copyrights by manufacturing and selling unlicensed replicas of the 1966 and 1989 Batmobile. DC sought a permanent injunction, the destruction of all infringing products and damages of no less than $750,000 for each infringement.
However, Towle countered that the U.S. Copyright Act affords no protection to “useful articles,” defined as objects that have “an intrinsic utilitarian function” — for example, clothing, household appliances or, in this case, automobile functions. He failed to persuade U.S. District Judge Ronald Lew with that argument last year in a motion to dismiss, and he was no more successful this time.
Seeking to end nearly a decade of litigation, DC Comics has asked for summary judgment in lawsuits brought by the heirs of Jerry Siegel regarding the copyrights to Superman and Superboy.
In a motion filed Thursday in federal court, and first reported by Law360, the publisher’s attorneys assert the Jan. 10 ruling by the Ninth Circuit Court of Appeals that effectively affirmed DC’s ownership of the Man of Steel bars Siegel’s daughter Laura Siegel Larson from moving forward with any claims.
That decision overturned a 2008 ruling that permitted Siegel’s family to recapture his portion of the copyright to the first Superman story in Action Comics #1 under a provision of the 1976 Copyright Act, which seemingly cleared a path for the estate of his collaborator Joe Shuster to do the same this year. That would have given the family of ownership of many of the Man of Steel’s defining elements, including his origin, his secret identity, Lois Lane and certain aspects of his costume and powers (super-strength and super-speed), while leaving DC with such later additions as Lex Luthor, kryptonite and Jimmy Olsen — not to mention the all-important trademarks.
Legal | In the aftermath of last month’s ruling that DC Comics retains full rights to Superman, the heirs of creators Jerry Siegel and Joe Shuster are urging federal judge to dismiss claims that their lawyer interfered with the publisher’s copyright to the character. DC sued attorney Marc Toberoff in May 2010, accusing him impeding a 1992 copyright agreement with the heirs by striking overriding deals with them in 2001 and 2003. The families insist the publisher filed its claims two years too late, as the statute of limitations expired in 2008. [Law360]
Webcomics | Malicious hackers hit the Blind Ferret servers last week, and they didn’t just wipe out the websites that host Least I Could Do, Girls with Slingshots and other high-profile webcomics — they also wiped out the backups. Gary Tyrell has the story and advises creators to have multiple backups in multiple locations. [Fleen]
Comics creator Jazan Wild on Monday asked the Ninth Circuit Court of Appeals to revive his $60 million copyright-infringement lawsuit against NBC Universal and the producers of Heroes, arguing that a trial judge shouldn’t have thrown out his claims nearly two years ago.
Wild (aka Jason Barnes) sued the network and Tim Kring’s Tailwind Productions in May 2010, accusing them of stealing the “carnival of lost souls and outcasts” depicted in the fourth season of the drama from his 2005-2006 comic series Jazan Wild’s Carnival of Souls. In his original complaint, he laid out numerous side-by-side comparisons that he contends prove the TV show’s traveling carnival is “virtually identical” to the one in his comic series.
But in May 2011, U.S. District Judge Gary Allen Feess determined that Heroes and Carnival of Souls “differ markedly in mood and setting, and weren’t substantially similar works, and therefore Wild had failed to prove his claim for copyright infringement. In Wild’s appeal, he insisted the judge erred by using too rigorous of a test to determine infringement, arguing that the wide availability of his comic meant he had to meet a lower standard of proof.
Less than two weeks after the iconic vehicle from the 1966 Batman television series sold at auction for $4.62 million, a custom carmaker was arguing that a federal judge should dismiss DC Comics’ claims that his Batmobile replicas infringe on the company’s trademarks.
The publisher sued Gotham Garage owner Ben Towle in May 2011, accusing his California-based business of manufacturing and selling unlicensed replicas of the 1966 and 1989 Batmobile (the company also offers a recreation of the TV show’s Batboat). DC seeks a permanent injunction, the destruction of all infringing products and damages of no less than $750,000 for each infringement.
While Towle failed to persuade a judge in February 2012 that the complaint should be thrown out on the grounds that the U.S. Copyright Act affords no protection to “useful articles,” Law360 reports on Wednesday his attorney took a different approach, arguing that DC waited too long to assert its rights.
Publishing | The X-Files is in the headline, but this interview with IDW Publishing Editor-in-Chief Chris Ryall covers a lot of ground, including the logistics of continuing a defunct TV franchise as a comic, the standouts among IDW’s young creators, and the challenges of being a comics writer. [Hero Complex]
Publishing | Alvin Lu has left his position as executive vice president of the manga publisher Viz Media. Lu had been at Viz for 13 years and was one of the top executives in the company, reporting directly to CEO Hidemi Fukuhara. [ICv2]
Comics | The graphic novel Metro, once banned in Egypt, is available in Cairo once more. [The Comics Reporter]
Publishing | As the smoke settles around the turmoil at Platinum Studios, it appears that company founder and CEO Scott Rosenberg remains in his position following an attempt by President Chris Beall to unseat him — and it’s Beall instead who’s been voted out. According to Deadline, Beall stands by his claims that Rosenberg has mismanaged Platinum and transferred controlling interest in the company to a shell entity called RIP Media without the approval of shareholders. Rosenberg denies the accusations, including that he controls RIP. The Beat has background on the whole mess. [Deadline]
Passings | Cartoonist Chris Cassatt, one of the contributors to the comic strip Shoe, has passed away following a short illness. He was 66. Cassatt started out in 1993 as the assistant to Shoe creator Jeff MacNelly and worked with him until MacNelly’s death in 2000. After that, he collaborated with Susie MacNelly and Gary Brookins on the strip. In earlier days he was a photographer for the Aspen Times in Colorado and also created a local comic featuring a character named Sal A. Mander whom he had run in actual local elections. “After candidate Sal A. Mander was thrown off the ballot in an Aspen mayoral election on the shaky (in Aspen, anyway) grounds that he was not a ‘real person,’ Cassatt legally changed his name to Sal A. Mander and ran for Colorado governor in 1978, finishing fifth in a six-candidate contest,” the newspaper writes. The following year, he mounted a write-in campaign for Sal against an unpopular district attorney who was running unopposed. He lost, but the ridicule Cassatt’s character heaped on the D.A. during the campaign took its toll, and he didn’t stay in office for long. [Aspen Times]
Legal | Both Warner Bros. and automobile customizer Mark Towle have filed for summary judgment in the studio’s 2011 copyright-infringement lawsuit against Towle, whose Gotham Garage sold several replicas of the Batmobile. Warner, the parent company of DC Comics, claims the design of the Batmobile is its intellectual property, while Towle argues that copyright law does not regard a “useful object,” such as a car, as a sculptural work and therefore the design can’t be copyrighted. [The Hollywood Reporter]
Crime | Police in Lincoln, Nebraska, are investigating the theft of 600 X-Men comics, dating back to the 1970s, from the communal storage area of an apartment building. [Journal Star]