Archive for ‘Legal’

122 items.

POD: Print on Demand True Terror Tales

by Colleen Doran on August 12th, 2011
Posted In: Blog, Creator Resources, copyright/trademark, Creator Resources, Creator Resources, Legal, Creator Resources, Publishing

If you are a self publisher, or interested in just putting a few of your own books out there using a Print on Demand service, you must read this post.

Looking to avoid The Man? Want to go your own way and own the whole enchilada? When you sign on with a POD service, you’re just signing on with another The Man.

Some months ago, I posted this (very well trafficked) info on iUniverse and their business practices. If you have not already read it, you should. Here’s a sample:

iUniverse charges you $699 to tell booksellers they can return your book if it doesn’t sell.

Returnable books is standard in publishing, except for the comic book direct sale market. Why on earth anyone would charge you $699 for this service I cannot fathom.

Except they want to make a buck from your ignorance.

First off, you guys gotta realize that once booksellers see your book coming from iUniverse, they know it is self published and are far less likely to stock it. Booksellers know Vanity Press when they see it. OK? Let’s just get that out of the way right now.

Scour the shelves of any retail bookstore outside the direct market, and I defy you to find five copies of anything self published. I’m not saying it never happens, I am saying it is sort of like, I dunno, having a meteor hit your house.

Now author Tracy L. Darity has posted an extremely important overview of the Print on Demand service and their biggest scam: outsourcing work, allowing other printers to handle your book. With no payments to you. Especially if the printer is selling the book as “used”.

Read the whole thing.

Although the on-line agreement has a clause indicating they can allow any third party to assist with fulfillment, the truth is only books I order are fulfilled by them. It appears all other orders i.e. a physical bookstore or on-line seller; the book is most likely printed by a third party source. It is then up to that TPS to notify the POD that they have generated a book. There are two huge problems with this arrangement: 1) if the company printing the book never notifies the original POD, the author will never get paid because there are no checks and balances currently in place to track the activity. 2) The printer, at their discretion, can alter the format of the book. By alter, they can change the physical size, reduce the font size, use a poorer quality paper, or choose not to coat the cover.

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A Plagiarism Carol

by Colleen Doran on August 9th, 2011
Posted In: Blog, Creator Resources, copyright/trademark, Creator Resources, Creator Resources, Legal

This anti-plagiarism video is from Norway, but if you click the CC button that pops up in the bottom menu, you get closed captioning in English! Awesome! Too funny.

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MUST READ: Copyhype on the Kirby Case

by Colleen Doran on August 3rd, 2011
Posted In: Blog, Culture, Comics, Comics History, Creator Resources, copyright/trademark, Creator Resources, Legal, Culture, Comics, Marvel Comics

Super-busy today, but can’t let this go by without urging you to read this extensive and interesting article at Copyhype on the Kirby vs Marvel case.

Like most people, I did not have a grasp on the way 1909 copyright is applied. Most contemporary creators believe that there was no work for hire provision until 1976. But the 1909 law was not wiped out by the 1976 copyright law. Terrance Hart, who is probably the best art and entertainment blogger out there, explains in detailed layman’s terms.

Factors that a court might consider include “the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party’s discretion over when and how long to work; the method of payment; the hired party’s role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party.”

Also, MStein popped in with some comments to the previous Kirby post, with a look at how the Kirby case differs significantly from the Superman rights dispute. A pdf of the relevant documents is here.

It is instructive to read and compare the decision in the Superman case, which explained why Action #1 was not a work for hire and therefore could have the assignments terminated under the 1976 law as the Kirby family contended they should have been able to do.

I’ve angered a few people by stating that I don’t really thing the Kirby heirs have much of a legal case here, but I’m not sure why my stating the obvious is substantive to anyone. I am not a lawyer, so my opinion doesn’t matter much.

The moral issue of whether or not a corporation might see the benefit of granting a substantial gift to the children of a creator is a completely separate issue. I don’t think the art and entertainment industry has a track record of doing that sort of thing.

Creators, the lesson was hard won by our forefathers. Don’t sign away your precious creations without the full understanding of what you are doing. I’ve signed many work for hire agreements, and have never had cause to regret it, because the work for hire contracts I sign with DC Comics are substantially better than anything creators got 50 years ago.

Yet there are many publishers, including small ones who sell themselves as little mavericks fighting against The Man, who will sell you a bill of goods about what they want on the cheap.

You can be Jack Kirby.

Or you can be JK Rowling.

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Marvel Comics vs Jack Kirby Decision: Marvel Wins

by Colleen Doran on July 28th, 2011
Posted In: Blog, Creator Resources, copyright/trademark, Creator Resources, Creator Resources, Legal

Just received 50 page judgment of the United States Southern District Court of NY in Marvel vs Kirby and counterclaim Kirby vs Marvel.

Grants plaintiff’s motion for summary judgment against Kirby, and denies Kirby’s motion for summary judgment against Marvel.

Key quotes:

The expert opinions of Mark Evanier and John Morrow on behalf of Kirby were roundly dismissed as hearsay.

The court paper goes into Marvel’s business practices with regard to creation of comics and payment of freelancers in detail, so it’s worth a read for that alone.

A 1972 agreement signed by Kirby reads:

And a 1986 document signed by Kirby:

VERY important note here: the “instance and expense test” is applied. I could be wrong about how I’m reading this, but that may be very important for future WFH lawsuit decisions.

If you have ever hired an avaricious also-ran to do minor work, this is great news for you if the also-ran climbs out of the woodwork 30 years later and wants the whole copyright enchilada.

If you are a primary creator doing major work for a big publisher: um, not so good.

Speak up if I’m misunderstanding here.

The conclusion:


Plaintiffs (Marvel) motion for summary judgment granted. Defendant (Kirby) cross motion summary judgment denied. Morrow and Evanier export reports are stricken. Plaintiff’s motion to strike Sinnot and Steranko testimony denied.

Click on link below to go to pdf of court decision. Then click on KIRBY DECISION to download PDF.

Kirby decision

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Graphic Artists Guild Statement on Commercial Felony Streaming Act

by Colleen Doran on June 29th, 2011
Posted In: Blog, Creator Resources, copyright/trademark, Creator Resources, Creator Resources, Legal

I’ve not had a chance to go over the bill in detail. I’m in deadline hell. I encourage you to read the bill which is presented in its entirety at the Graphic Artists Guild site.

“A bill to amend the criminal penalty provision for criminal infringement of a copyright, and for other purposes.”

There are crazy rumors circulating on the internet and on blogs that this bill will turn the internet into a police state; parents will go to jail for posting a family video with music or a TV show in the background on YouTube, people will be arrested for singing in public, karaoke, playing Christmas music on a loudspeaker from their house, posting a video of themselves playing a song on an instrument on YouTube, etc.

This bill is to amend current copyright law to include new technology, specifically the illegal streaming of copyrighted motion pictures over the Internet. It is not the introduction of a new copyright bill.

There is no language in this bill that is aimed in any way at individuals making personal use of copyrighted materials as already permitted under the Doctrine of Fair Use, nor does this bill change that section of the law. The Copyright Office website includes a description of what constitutes Fair Use.

The entertainment industry in the US employs far more artists than any other, even more than the publishing industry. Artists create all sorts of content used in television, video, films, games, exhibits, performances and packaging of the recordings of music and motion pictures. The Guild’s mission is to advocate for the economic and professional interests of artists. The entertainment industry, which includes large media companies and corporate copyright owners as well as small studios and independent creators, continues to lose revenue due to increasing piracy of their copyrighted works.

Terry Hart at Copyhype breaks down the bill in detail and explains how it works from the perspective of an IP attorney.

Other factors support the idea that most internet users have no reason to worry about this bill. The Department of Justice’s Prosecuting IP Crimes Manual lists several considerations for US Attorneys to keep in mind when deciding whether to bring charges. Among the considerations specific to IP crimes:

Federal criminal prosecution is most appropriate in the most egregious cases.
Limited federal resources should not be diverted to prosecute an inconsequential case or a case in which the violation is only technical.
Federal prosecution is most appropriate when the questions of intellectual property law are most settled. Victims have a broad range of civil remedies that include restitution, damages, punitive or quasi-punitive damages, injunctions, court costs, and attorneys’ fees.
The sources or manufacturers of infringing goods and services are generally more worthy of prosecution than distributors.

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