Thursday, 21 November 2013

Creators Bill Of Rights 25th Anniversary: Chris Roberson

iZombie & Cinderella
Art by Michael Allred & Shawn McManus
(from, 28 May 2012)
There's been a lot of discussion in comics circles the last few months about "creator's rights", certainly more public discussion that I can remember happening in recent years. But I find that many of these discussions–whether involving comic readers, creators, or other industry professionals–often get mired rather quickly in impasse, in which the participants are largely talking past each other without doing much to debate the actual issues under discussion. Naturally, that’s a risk in discussing any contentious issue with people who don’t all share the same position, but in the specific instance of creator’s rights in comics I think it’s especially problematic for one simple reason: people often have very different definitions in their heads about just what constitutes "creator's rights", and may in fact be having two completely different conversations without realizing it.

As a general term, "creator's rights" can seem like a fairly nebulous concept. If we’re talking about someone creating something entirely new, their rights as the creator are fairly well defined (in the United States, at least) under existing copyright law. But often times when people invoke “creator’s rights” in these discussions they are talking about the rights of people who have done creative work for publishers under work-for-hire arrangements. And those creators do have rights, but they can be far more subtle and nuanced.

However, even under the more stringent of work-for-hire arrangements, the person who sits down to write or draw a new comic actually starts out with all of their rights intact, and only surrenders those rights through contract and negotiation with the employer, in exchange for some sort of consideration (eg. a paycheck). That is the essential role of contracts between creators and publishers, to establish what rights the creator is assigning or surrendering to the publisher. But if the creator is not aware of their rights at the outset, they may not even fully understand what it is they are signing away.

And in addition to the rights of the creator as legally defined by intellectual property law in the United States, there is another set of principles and ethical standards that, in an ideal world, creators would be able to count upon. These are probably best described as “moral rights,” which are included in legal definitions and protections in many other countries, but not in the United States except in certain narrowly-defined scenarios (such as outlined in the Visual Artists Rights Act of 1990). But while moral rights are not legally guaranteed in the United States, many creators still consider them an essential element of creative control.

Intellectual property law, contract negotiations, moral rights… the tangle of issues which fall under the general umbrella of “creator’s rights” can be daunting. Fortunately for us, this is not the first time that these issues have been discussed in the comics field. We have been here before. But if comics as a field is to move forward, we as a creative community need to have better memories. We need to remember the battles that have already been fought and won, so we don’t keep fighting them over and over again.

What we need is a Bill of Rights. And lucky for us, we already have one.

The Creator’s Bill of Rights was drafted by Scott McCloud in 1988 with input from the attendees at a creator’s summit organized by Dave Sim, Kevin Eastman, and Peter Laird, including Richard Pini, Michael Zulli, Larry Marder, Rick Vietch, and Steve Bisette. The Bill was inspired by conversations that had surrounded the earlier Creative Manifesto that Sim had drawn up with input from many of those same creators, as well as Alan Moore, Dave Gibbons, and Frank Miller.

The Bill was the topic of considerable discussion for a time, but while it continues to spark the occasional debate, I feel that it has largely been overlooked by too many in the comics field, and especially among younger creators.

Chris Roberson is a novelist and writer who has worked on several comics titles for DC and Vertigo, including his own co-creation iZombie. Famously in April 2012, Chris Roberson announced that due to ethical concerns, he was no longer comfortable working for DC Comics. The remarks very quickly spread throughout the comics internet, and quickly led to DC terminating Roberson’s contract.


Anonymous said...

Roberson seems well informed on the issue, but I wonder why he thinks a Bill of Rights is needed. He doesn't exactly say.

In fact, the Bill of Rights doesn't touch upon much of his earlier discussion, namely existing intellectual property law, moral rights, how to negotiate a contract, or a creator's rights in a work-for-hire arrangement. In fact, many of these topics were not even discussed at the Summit.

I frankly cannot understand why anyone would expend effort debating a Bill of Rights of no legal force, when their energies would be better spent debating the law as it exists and where it should go. The same would go for industry norms, on which again, the Bill is silent. The Bill is no impetus for any of this discussion and would, I think, complicate already difficult and contentious discussions.

It seems like what is actually needed is first, knowledge of existing laws, and second, knowledge of industry norms, and then a discussion of what would be better. The Bill of Rights fails to assist in any of those ends.

What would be better?

Someone could compile a handbook for comic book creators and professionals. I have no idea if such a thing exists, although I did a quick internet search and found nothing exactly on point.

I think some useful subjects it could contain would be:

- an easy-to-understand summary of copyright law in Canada and the US and key points most relevant to comic book creators
- a checklist of important considerations in negotiating a contract
- information on what some typical contracts look like
- the perspectives of diverse creators in the field working for all the major publishers and independents
- something about self-publishing as an option
- something about the various publishers, such as their standard practices and how they differ, the pros and cons of each publisher
- a list of other resources for comics professions

There are probably dozens of other topics that would be relevant to creators that could be added to that list.

I think trying to get a broad survey of not only creators from across the industry, but publishers and even distributors would answer the criticism of the Bill that it is not representative of the views of those in the field in general, fails to consider the publisher’s perspective, and lacks credibility as a result.

Something more practical as I have described would also answer the "pie-in-the-sky" criticism of other professionals.

No doubt this would be a lot of work for one person to begin to compile. Perhaps somewhat less work would be for someone to set up an online resource and invite professionals to contribute their perspectives on the various topic areas.

The fact that the original "Summit" never scratched the surface of providing the practical information I suggest I think is due to the fact that the primary purpose of the Summit was to justify Mirage and Aardvark-Vanaheim selling trade collections directly to their readers. Remember, Dave only cared about one point on the Bill, to do with distribution.

The Summit was primarily about a conflict between businesses: a publisher and a distributor. It had no immediate, practical goal of trying to get something for a creator from a publisher. In fact, according to Sim, he simply advocated his arrangement with Gerhard as the most moral model of a publisher-creator relationship, which effectively shut down the conversation on that front.

For me, I would say that something like Neal Adams' attempt to unionize the comics industry, or some of his other efforts in relation to creator's rights would be a much more relevant piece of comics history to understand if someone wants to know that history.

-Reginald P

Anonymous said...

I've found it interesting to see the reactions from creators and commenters here to the "Creators' Bill of Rights". Erik Larson (who's always been a shoot-from-the-lip sort of guy, consistently demonstrating more invective than intelligence) and Reginal P. (offering more reasoned criticisms) seem strangely opposed to the very idea of the Bill.

I might suggest that the Bill was very much a product of its time. It came at a time when creators were told point-blank that they didn't have the right to have their lawyers review contracts, when DC sold Watchmen pins and then turned around and told Moore and Gibbons that they weren't entitled to any royalties under their deal because these pins were "promotional items", when to cash your cheque from Marvel you had to sign a retroactive work-made-for-hire contract, when creators who raised objections to the lousy printing of their work were told to shut up and go away. Also, creators (particularly entry-level creators) were (and are) notoriously a) not that bright, and b) starry-eyed. Informing them of the rights that (admittedly, Reg P.) they should have known about was probably a good thing.

Ultimately, the Creators' Bill of Rights is perhaps more akin to the USAnian Declaration of Independence -- a statement of the principles that make action necessary -- rather than the Constitution and Bill of Rights, which attempted to set forth the conditions and methods of governance. Perhaps the Bill was misnamed.

And one specific note: Dave's fight with Diamond over the right to sell the High Society volume direct to readers is oine of the (rare) cases where I think Dave was 100 percent right. Dave offered them a monthly Cerebus comic; they took a monthly Cerebus comic; deal over. Dave can do whatever he wants with his property after that. Diamond claiming that they had a right to new publications from anyone is not justified or justifiable. And then punishing not Dave's own comic (refusing to stock Cerebus might hurt Diamond's own bottom line, and obviously that can't happen) but the innocent-bystander creators of Puma Blues represents an immoral and cowardly action on Diamond's part.

-- Damian T. Lloyd, nme

Anonymous said...

I agree that Dave was in the right in his conflict with Diamond. In fact, I think that is the central legacy and effect of the Summit and Bill, since Dave continued to bypass the distributors and probably made a well-deserved fortune that way – as a publisher-creator.

I believe that the conflict between publisher and distributor was the true focus of the Summit and the Bill – a fight between business suits frankly.

This is my main objection to holding the Bill up as a milestone for creator’s rights, which have always been defined as against the publisher's. The history of the comics’ medium can be defined as a conflict between creator and publisher: but Dave’s fight with Diamond was between publisher and distributor.

My main objection to all this lionizing of the Bill as a milestone for creator’s rights is that I think Dave’s battle with Diamond was never primarily about creator’s rights and the Bill’s subsequent rejection by and irrelevance to the industry doesn’t prove that other creators were simply lazy, self-interested jerks who didn’t want to do their bit, but that the Bill and Summit produced nothing new and nothing of any practical value for the relationship between creators and publishers.

The Bill wasn’t the thing. One person, Scott McCloud was primarily responsible for the Bill, but once Dave saw that he could simply include a point about distribution on the list, it would provide him with the moral justification that he thought he needed to bypass Diamond, and was happy to go that way, with little regard for what the rest of the Bill said.

I also think the Summit was primarily about bargaining power, a show of strength, and hard bargaining, and much less about manifestos and Bills of Rights. This was a victory of a publisher against a distributor through force. Dave won because he had enough bargaining power and he demonstrated the moral support of his peers, including Eastman and Laird, who had bargaining power of their own with Diamond. The Bill in its wording had little relevance, except perhaps to ease Dave’s conscious on a business decision as a publisher. The lesson to be drawn would be to have bargaining power and align yourself with friends with bargaining power. The Bill of Rights actually fails to incorporate that lesson, in that it focuses on individual rights fought individually (for instance, the right to move from publisher to publisher, work for multiple publishers: we are clearly talking about individual creators on their own).

Clearly, they should have been working collaboratively on an ongoing basis to show greater strength in the face of other conflicts. But that lesson was not taken from the summit nor it is reflected in the Bill.

-Reginald P Part 1

Anonymous said...

I don’t agree that Larsen spouted “invective” and lacked “intelligence.” Larsen makes a worthwhile point. The drafting of the Bill did not involve many professionals and so it does not speak for the industry. The Bill was drafted under the auspices of Mirage, Aardvaark-Vanaheim, and Warp primarily. A few self-publishers, who had their own agenda, had a strong influence. Most of the creators involved worked for those publishers. It was hosted by Mirage, their employer! I don’t question the sincerity of all signatories, but from the outside, it suggests a lack of independence and a narrow corner of the industry claiming to provide universal truths for “creators everywhere”.

Why didn't they try for more diverse signatories or further summits? What about including Will Eisner, Sergio Aragones, Neal Adams, Steve Gerber, the Hernandez Bros? There weren't enough heavy hitters involved in the Summit. Larsen identifies a huge problem. It's fair, if blunt, for Larsen to call the attendees "random guys" when perhaps 4 of the 17 could generously be considered industry heavyweights.

McCloud made a similar argument that the Bill was a “product of its time”. I’d grant that it is a product of its time – hey, what isn’t? – although with a serious caveat. The summit and Bill weren’t products of creators in conflict with publishers -- and remember, the central conflict of creator’s rights was always creators versus publishers. The publishers were running and hosting the Summit. It was a somewhat confused “product of its time”, in that it was the work of a hodgepodge of creator-publishers, their employees, and a minority of freelancers. The results show it.

I’d also reinforce my point above: the Bill wasn’t a representative “product of its time” other than in the narrowest sense, because it excluded so many important lights in the industry.

I’d grant that the Bill reflects some very important concerns of comics’ creators, although, again, in over-generalized terms without a meaningful program for change.

I disagree that the Bill actually does a good job of informing a creator of his or her rights. It never purports to do that. It provides “rights, as we perceive them to be.” This could seriously mislead a reader. This very short opening paragraph might suggest to creators these “rights” are not a matter of law, but rather the “perceptions” of the drafters and something new or revolutionary. The Bill also neglects to mention some very important existing legal rights and offers no practical tips to help a creator defend his rights. I cannot agree that this flawed information is a “good thing”. It’s misleading and leaves the reader ignorant of the law and is silent on industry norms.

In fact, Dave, one of the “Founding Fathers”, understood these “rights” as purely points of ethics, not as legal rights at all. For Dave, he wasn’t even really trying to tell anybody what his or her existing rights were. The Bill never defines its essential terms, it isn’t clear on what it is attempting to do, and so it’s not clear on what it really means. And again, going back to Dave simply looking for justification to bypass Diamond, and Dave not caring about much beyond that, it produces, I think, a fairly flawed document.

-Reginald P, part II, The Regi Strikes Back

Anonymous said...

As a final point, the rights-based system favours publishers. The Copyright Act favours publishers. Business people wrote these acts, not creators. That a conference dominated by publishers chose to go with a manifesto that trots out the same old tired rights-based system should not be portrayed as new or revolutionary. It's very conservative in reality.

I understand that McCloud, the principal drafter, was not a publisher. With all due respect to him, he was stating rights that were not being respected and he deserves sympathy. I just don't believe he came up with any viable answer.

The only real solutions as I see them, are to reinvent the rights system itself [for instance by nationalizing or socializing creativity in some as yet untried way], adopt the union approach, or to otherwise pool resources and work the existing system to the advantage of the creative group. The Bill does none of this.

To me, it doesn’t seem strange to be against something that has proved to be a complete failure and has been rejected within the industry for well-articulated reasons. It seems reasonable to acknowledge the failure, figure out why it was a failure, and then propose a different course of action that might avoid the same pitfalls, and, perhaps even succeed in its goals. That is what I did in the previous thread by calling for some kind of handbook or website dedicated to information for creators.

-Reginald P., The Voyage Home

Tony Dunlop said...

When is "The Undiscovered Reginald" coming out?

Anonymous said...

Given Reginald P.'s epic posts here, I'm not sure how much there is left to be discovered!

But serially, folks ... I think Reg makes some good points about the Bill not being of very much use as a practical document going forward. It would be great to hand new creators both the Cerebus Guide to Self-Publishing and the Reginald P. Guide to Copyright and Business for Creators.

I'm a big union supporter myself, but I think that is unworkable in the comics field, as it was when Neal Adams and co. brought it up in the 1970s. "Union" has become a dirty word; somehow the battle is "workers and management against those greedy unions" rather than "workers organizing themselves into a union to get some power together against management that they don't stand a chance of alone".

But the only power a union has is to withdraw its members' work so that management has nothing to sell. I don't think the creators are capable of standing together to the degree necessary, and scabbing will always be a problem. There are too many starry-eyed young kids who are so grateful for the chance to draw Batman that they'll pay the publisher. The only way I could see a union working is if Diamond agreed not to carry non-union comics.

While I'm very much in favour of reforming copyright law, the efforts to do it (such as in the current TPP) go in exactly the wrong direction -- further enshrining corporate interests over creators' interests. So perhaps the best idea is Reginald P.'s comprehensive resource for creators -- a thorough outline of their rights.

-- Damian T. Lloyd XI, the unrecovered money

Anonymous said...

Although I have clearly written too much on this topic, there is one other solution.

That is for comic book creators to fund something like the Comic Book Legal Defence Fund, but focus it on creator's rights.

They could fundraise and take donations and then with those funds act on behalf of creators against publishers that attempt to take advantage of creators based on the merits of the case, regardless of whether the creator had even been a member or contributor to the fund.

If the fund could be adequately funded, it would obviate the need to organize and unionize and the issue of scabs would be irrelevant, since the threat would be in litigation, not in work stoppages.

This seems like a feasible solution that would somewhat counterbalance the power of large companies against individual creators. It costs a lot of money for big companies to employ lawyers, often thousands of dollars an hour. A real legal threat might make them more amenable to some (probably minor) compromise.

I'll try to make this the last one...

- Reginald P.