Thursday, February 16, 2012

On the Comparison of Artists' Alley to Schroedinger's Cat

After the Gary Friedrich decision leaked, many people, myself included, feared that it might be, if not a deliberate first volley against Artists' Alley, certainly it could be seen as an inadvertent Step One, which at the very least put it on the lawyers' radar.

To summarize greatly, there are a LOT of artists drawing DC and Marvel (et al.) characters at conventions, and charging money.  Characters that they do not own, and characters that are zealously protected by batteries of white-lipped attorneys.  There has been a tacit understanding between the artists and the publishers - as long as the art does not get mass-produced, and does not legitimately "damage the character" (portray them in a way in contrast to how they are portrayed in the comics, nothing excessively explicit, etc) the publishers don't complain.  They know it's a major portion of the artists' income, and they'd rather see them get it elsewhere than have to pay it themselves.  The rule of the day has been "keep your head down, and we'll pretend we don't see you".

Now in fairness, Gary was not drawing sketches.  He had prints and T-shirts made, from art he did not draw, or even own.  THAT'S what Marvel sued (or more correctly, counter-sued) him for.  Wherever that nebulous "line" is, Gary crossed it, some time back.  I've already gone on about how while the action is legally correct, it "feels" wrong, and that's why Fandom as a unit has risen up against it.  Emotional opinions are hard to change, so rational debate rarely achieves anything in such cases.

A lot of people extrapolated on the ruling, and opined that right now, there's nothing that prevents a publisher from slapping a Cease & Desist order on an artist for selling sketchbooks or doing sketches of their characters.  There's the pressure that the fans would exert, and the potential bad press, but ultimately, the two big boys are now boys owned by two far BIGGER boys, who as a rule follow the letter of the law and not the spirit.

There's already been one or two isolated incidents of artists having their art taken by reps from Warners, actions which were VERY hastily reversed with copious apology.  Another artist had his original art taken off eBay, and were it not for the quick suggestion that the issue wasn't copyright, but that the art had a certain...homoerotic take to it, that case may not have been reversed as quickly. 

The point is, legally, a copyright holder HAS to enforce, or at least investigate, any copyright or trademark infringement that they become aware of.  If they don't, another party can claim that since they're not actively protecting them, they can be challenged. It's the reason Disney told the nursery school in Florida they had to take down the hand-painted Mickey and Minnie they painted on the classrooms' walls.  Legally, exactly right - a for-profit venture used the Disney properties without license or permission, and that trumped the small PR fluff. 

Warner Brothers went through a similar period back when the first Harry Potter films came out.  People set up websites about the character, and registered website names with "harry potter" in the URL.  And some paralegal sent out C&Ds to all and sundry, including ten year old children.  It made the papers, there were the requisite hues and cries, and the sites were not apparated. Again, from a legal viewpoint, best (and cheapest) thing to do, not so much image-wise.

Right now, the artists have NO true protection.  One might argue that since the activity has been allowed for so long, a sort of legal easement has been created, which has given permission by not explicitly refusing it.  But odds are that would not hold up in court.  Handshakes and winks are not legally binding; paper is.

Many people are in full red-alert mode - Jean-Marc Lofficier, legal advisor for Steve Bissette has basically warned people to cease drawing marvel characters immediately, shred any prints you may have made up, and cover your ass, as this is Marvel declaring war.  Others, like Spider-Man writer and all-around great guy Dan Slott maintain that this is all just screaming fire in a crowded theater (or in this case, convention hall), and there is NO such ulterior motive in the hearts and minds of Marvel.

I'm in the middle - I don't think this is the thin end of the wedge, but I also don't think there's anything stopping some legal beagle wanting to make a name for themselves from convincing WB and Disney that this is, cumulatively, a threat to the properties, and editorial may one day blink.

In an attempt to defuse the situation, Joe Quesada and publisher Dan Buckley gave an interview to CBR yesterday, explaining the impetus of the lawsuits, and clarifying Marvel's stand on convention sketches and the like.  Dan Slott tweeted the quote's last night, proudly providing the following quote as provenance that all was well, and the sky was not falling:

Quesada: Let me put this as simply as I can: Marvel is not looking to make any new policy announcements through this lawsuit -- a lawsuit that began five years ago.
Buckley: We in no way want to interfere with creators at conventions who are providing a positive Marvel experience for our fans. We want fans to speak and interact with the creators who wrote, penciled, inked, lettered, colored or edited their favorite stories. Part of that positive interaction is that a fan can walk away with a signed memento or personalized sketch from an artist.
That's great, except that it doesn't actually say anything.  They don't want to make any new policy, that's fine, but it doesn't mean there's a policy NOW. What exists now is a state of "don't ask, don't tell".

And Dan's statement only says they want fans to get a sketch.  Well, they can get them at the Marvel booth, right? That would make sure people visit the Marvel booth.  Good way of maintaining control.

If they will not go after artists for drawing their characters, SAY so, clearly, explicitly, and most importantly, legally.  Right now, at the end of any sentence, there's a silent "probably" or "for the moment".  And until a definitive "no" is given, it's an implied (ok, to be fair, inferred) "maybe not".

It is to the companies' benefit to keep this statement nebulous.  It leaves their options open should someone cross the line again.  But it also leaves the artists under a virtual sword of Damocles. 

Here's the thing - the publishers have to protect their copyrights and trademarks, but they want to let the sketches happen. They're good PR, free advertising, and lets the artists make money. But they need to protect the property above all.  The perceived permission now is that you can draw them as long as you don't make TOO much money, and that the characters aren't doing anything really off-sides.  So maybe ONE dildo up Superiorwoman's ass might be acceptable, but three or more (or perhaps above an aggregate total dildo-diameter) would not pass.  OK, just set that in writing. 

"Company ABC provides all artists a non-exclusive limited license to use our characters for one of a kind works of art, limited run, non-third-party distributed sketchbooks and prints for sale at conventions and personal appearances.  The company reserves the right to review the works for editorial propriety, and ensure the distribution of the products to not infringe on for-profit licensors of the property."

That pretty much covers all bases - it sets rules that the artists can follow, and that they can get called on if they don't.  Right now there's no idea what will get you in trouble, which some people are interpreting that nothing will.  And I suspect that's not true, or at least won't be for long.

Same thing for fan web-sites, etsy stores, those one-day T-shirt sites, etc - here's a block of legalese to add to your site, here's some free approved graphics to start you off on the right foot, if you start making too much money, we reserve the right to come back and declare you no longer a not-for-profit site, and ask to wet our beak.

Such an agreement could either be stated publicly for all to know, or to ensure that each artist is aware of said rules, an agreement may be required signing, perhaps the license costing a dollar to be a legal contract (donate the money to the hero Initiative to take the curse off)  Yes, that'll get some people screaming Big Brother and the like, but I maintain that a set of agreed-upon rules are a better situation than the nebulous Maybe-Land we're in now.

Like Schrodinger's Cat, we don't know the outcome of the Artists' Alley Situation until it the standard is tested. Right now the box is still closed.  But I believe there are people looking at the latch...and are tempted.


  1. Although I couldn't come up with a comment to match the exceptional level of this piece, Vinnie, I have taken it upon myself to pass on the URL to two Yahoo groups I'm in: one which has several veterans of Artists Alleys in its membership, and the Tom Swift group (which is, among other things, a haven for fan fiction writers).

  2. And here, in fact, is one of the responses from a fellow fan-fictor:

    Thanks for the link--an interesting essay, notwithstanding the dildo paragraph
    (or maybe withstanding it).

    Comments from my not-an-attorney standpoint.

    (1) Trademarks do have to have a vigorous defense by their owners, or they
    become legally unenforcible. The "vigor" requirement does not apply to

    (2) The essay doesn't note the protection offered parodies--works that
    "transform" the original material in such a manner as to comment on their
    central elements (--as opposed to using those elements to comment on other
    things). Parodies don't have to be "funny". I explicitly note on my website that
    my TSL's are, among other things, parodies. IMHO, all the TS FanFic I've seen
    can be justified in that way.

    (3) As noted in another posting on this group a while back, it seems to me that
    ANYTHING that appears in the now-public-domain PLANET X and HYDROLUNG is
    available for use. And that's a lotta anything. What's in public domain can't be

    (4) There's also the myth of the power of the Cease-and-Desist letter. They're
    required to give such notification as part of the process, but the letter in
    itself is just a letter, not a lawsuit. There are easy ways to reply
    cooperatively and thus give the lawyers something to show the bosses, while not
    doing anything to sabotage one's own work or efforts.

    (5) It helps greatly if you don't make much money off what you're doing. Books
    printed one-by-one at FedExo at the request of fellow hobbyists are not going to
    justify billable hours at Simon & Schuster.

    (6) And now, indeed, the cyber-counterforce has made an appearance. If even
    Hollywood and friends have to yeild to enraged netizens (as in Google and Wiki),
    there might be a "chilling effect", in their direction for a change, when it
    comes to hot pursuit.

    (7) And by the way, in an age in which anything can be stored out of sight on
    the net somewhere, what does it really mean to "tear up someone's copies"? You
    can print-out another. Or swallow your thumb-drive.