Lying In The Gutters

Tue, June 28th, 2005 at 12:00am PDT

Comic Books
Rich Johnston, Columnist

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LYING IN THE GUTTERS VOLUME 2, COLUMN 6

For the last twelve years I've been writing a rumour and gossip column while some have insisted I'm the only investigative journalist in comics. A label I was happy to refuse, as I was more interested in providing a column for entertainment.

The birth of my first daughter, Eve, three months ago, gave me the chance to take a sabbatical and consider something new.

So for six weeks, Lying In The Gutters has been run as an investigative journalism column. Just to see what the fuss is all about. Fewer, but longer stories, much less nonsense, maybe a little more substance. And probably the cheeky grin of my former self sneaking through. And now the six weeks are up, you're given the opportunity to vote which version of the column you prefer to continue.

The division in attitude towards the new column has been extreme, but equally balanced. It's going to be Bush Vs Gore all over again. However, in this case, the one with the most votes will actually win.

To vote, follow the instructions at the bottom of the column.

WORSHIP THE CREATOR

Creator-ownership, creator-rights and creator-recompense has been one of the long running stories in the comic industry over the last thirty years. Volume 2 of LITG started with a consequence of this, with Alan Moore pulling "League Of Extraordinary Gentlemen" from DC Comics - a story which recently made "Entertainment Weekly."

The standard model is that the publisher is painted as a dastardly villain, exploiting the humble scratchings of a poor artisan. The truth is generally much more complicated. So let's take a look at a few related stories this week:

JACK KIRBY

Jack Kirby is a name that much of the creator-rights movement orbited around, in his fight for recognition from Marvel Comics for his contributions to their multi-billion dollar empire, as well as the symbolic return of what original Jack Kirby artwork they had left.

The "Fantastic Four" is going to be Marvel's big movie this summer. Based on the series created by Stan Lee and Jack Kirby that kicked off Marvel's success in superhero comic and transformed an industry, it has all the hallmarks of a successful blockbuster. Stan Lee recently settled a court case with Marvel over the receipt of percentages based on films made from characters and concepts he created. The estate of Jack Kirby however has not been so lucky.

It has been made clear to me that Jack Kirby's estate will not receive any payments from the "Fantastic Four" movie at all. And even the residual benefits that creators or their estate's can receive from multi-media exploitation of a property, such as increased sales of books, will not benefit the estate as they do not receive any royalties or incentive payments from any sales of reprinted works, or new works based on past concepts. According to John Morrow of the Jack Kirby Collector magazine, Marvel have put in place a policy that only pays royalties to the family up to six years after a creator dies.

Marvel did not respond to questions put to them about this at the beginning of last week. The "Fantastic Four" movie is released by Fox on July the 8th.

DENNY O'NEIL

"Batman Begins" launched last week to rave reviews and a number one spot at the box office. Bob Kane agreed to a deal which has been admired by creators ever since, but there has been much debate about what else should be due to Bill Finger and Jerry Robinson. And with "Batman Begins," the contributions of Dennis O'Neill, especially to the character Ra's Al Ghul, were recently raised.

One person who spoke to Dennis O'Neil recently told this column that O'Neil jokingly made the point to Paul Levitz and Dan DiDio that it seemed everyone at DC had been given the script to "Batman Begins" to read, but him.

Very shortly afterwards, Warner Bros. rang asking O'Neil to write the novelisation of the movie. Which O'Neill accepted and can be bought here and here.

This column continues to be impressed how Warner Bros. media conspires to manage awkward situations.

Warner Bros. and Dennis O'Neil did not respond to questions asked last week.

STEVE GERBER

Steve's statement in an earlier Lying In The Gutters, to the effect that creators should not work on series created by others, without their permission, did lead to the question of how he could have worked on "Defenders" for so long?

Steve answered this question for the column, saying "At that time, Stan Lee was sitting in the publisher's office at Marvel Comics approving every writing assignment. I worked with Bill Everett briefly on 'Sub-Mariner.' That said, I don't want to imply that I specifically sought out any other creator's approval for anything thirty years ago. At that time, I was as abysmally ignorant of creators' rights issues as anybody else. Because I was working more or less directly with Stan, who co-created virtually all the early Marvel characters, the question just never came up. I doubt I would settle for one co-creator's okay today.

"And by the way, I don't deny I made mistakes. The two I most regret are the 'Metal Men' story I wrote for DC while Robert Kanigher was still very much alive and still very active in the industry, and the couple of issues I wrote of 'Mister Miracle.' I found out later that Kanigher was not at all pleased about that story, and I felt badly about it. At least I had the chance to apologize to Jack for the 'Mister Miracle' stuff. (He forgave me, and we later created 'Destroyer Duck' together, which should be some indication of whether he respected my position on creators' rights.) Unfortunately, I never met Kanigher."

The Omega Unknown issue raised recently has raised a number of issues. Despite Steve Gerber declining to comment in any way, it seems clear that no contract was signed or discussed between writers Steve Gerber and Mary Skrenes, and publisher Marvel Comics. The legal case for Marvel being able to publish the new Omega The Unknown is a challengeable one, though clearly Gerber would have more to gain the more issues have been published.

It appears there are a number of seventies series at Marvel that seem to fall into this gap. Marvel at the time were slower to respond to the legal necessities of work for hire and work made for hire at the time - the standard model was a waiver on the back of cheques, a measure which has been legally challenged in court and some experts deem non-binding - especially as the receiver was legitimately able to cross it out.

Marv Wolfman recently challenged Marvel over the ownership and exploitation of Nova and Blade. These were both properties that Wolfman brought to Marvel, but the combination of differing laws under a bankruptcy court and a difference in judgement over what Wolfman said he knew and what the court expected him to know, especially since he went on to be editor-in-chief, saw Wolfman lose.

Steve Gerber's experience has been different. Howard The Duck, another seventies creation at Marvel, saw the two sides settle in the eighties, although Gerber was bound over to silence. Since then there have been more case studies which provide Gerber stronger ground should be proceed to action over Omega.

But what of the likes of Master Of Kung Fu, Man Thing or even Ghost Rider, itself the subject of an upcoming film? The issues are also clouded by collaborative creative efforts, not least by Marvel editorial, as well as loss of paperwork, recollection and standard practices at the time. It would take a number of lawyers to unravel much of this. But unless that's made clear, Marvel's decision to publish "Omega The Unknown" may become one they might regret.

SCOTT ROSENBERG

Imagine someone describing an elephant to you. Except they can't refer to the elephant itself, you have to try and work out where it is and what it looks like, by the descriptions of the air around it. Then, what's left, has to be the elephant.

Lying In The Gutters has been looking into why Marvel feels itself unable to publish more Ultraverse titles despite a desire expressed by its editor-in-chief, repeated mentions in the Marvel Handbooks (up until this month) and contracts that state that Marvel Comics owns the Ultraverse characters and concepts.

I talked to Scott Rosenberg. These days he may be better known as a movie producer, as president of the multi-media comics/TV/movie company, Platinum Studios, but he used to be president of comics publisher Malibu, who published the Ultraverse line. This superhero imprint began while Malibu were publishing Image Comics, in the full knowledge that Image would be leaving once they'd worked out the niceties of the publishing industry.

And so Rosenberg took a number of well-known comics creators of the day out into Arizona to brainstorm a new superhero universe. They created extensive bibles for characters and concepts, and then published them. "Prime," "Sludge," "Firearm," "Hardcase," "Strangers," "Mantra," "Exiles," "Ultraforce," "Night Man"... all new characters, and became one of the publisher success stories of the nineties. All work-for-hire deals, these "founding fathers," Mike W. Barr, Steve Englehart, Steve Gerber, James D. Hudnall, Gerard Jones, James Robinson and Len Strazewsk, working from Larry Niven's initial notes, received a percentage interest in the Ultraverse as a whole, and also in their own characters-- something Rosenberg believed in as a matter of principle-- while Malibu owned the characters, books and concepts.

Rosenberg was eventually courted by a number of publishers, but chose to sell Malibu to Marvel on the promise that they had better access to the world market, and would bring in more advertising-- and one of the Malibu investors had a strong relationship with then-owner Ron Perlman.

Malibu was an attractive proposition for Marvel-- they had shown success launching new characters from scratch, as well as providing effective and efficient marketing.

No sooner had the deals been signed, and the Malibu staff walked into the Marvel buildings, then what would later be called Marvel-cution started. The direct market industry had begun to shrink rapidly, and Marvel started shedding staff in repeated waves, each time promising the last wave would be the last. Rosenberg had a number of criticisms as to how Marvel were handling the situation and wrote memos to that effect, but his main concern was his Malibu staffers and books. As the lawyers added their last stamps, Malibu were instructed to increase prices, even on already-solicited books. Profits on Malibu immediately rose, but sales fell and eventually, so did those profits. Malibu were then told they had to lose employees. Malibu executives offered to take pay cuts instead, but this was declined in favour of a reduction on body count. Rosenberg tells me he told them this would happen over his dead body - but that this was seen as acceptable. Deciding he was no longer happy working at Malibu, he left. Malibu titles continued to be published by Marvel, with increasing Marvel crossovers, but eventually the line withered and was wrapped up.

But Scott Rosenberg's involvement at Marvel was not over yet. As the company descended into bankruptcy, he formed a creditors bankruptcy committee which sought to claim money owed to creditors including himself, and to preserve existing contracts as they passed through the bankruptcy process. The Ultraverse was no more, but the contracts held.

However, the Ultraverse has also retained many fans. Some of which have grown up to work for Marvel including on the recent Marvel Handbooks line - which give detailed description and insight into the characters and history of the Marvel Universe... or universes.

One of the Marvel Handbook writers, Jeff Christiansen, wrote a private message to the Marvel Universe Handbook yahoogroup, which was forwarded to this column. Entitled "Rich Johnston" it read "This guy has been e-mailing me and other people, digging around about the Ultraverse and why it's not featured anymore. It sounds like he plans to write a piece for something that will badmouth Marvel for not using these creator-owned characters. Regardless, please, if he contacts anyone on one of these boards, please just don't respond."

Both from Jeff's statements and from corroboration from those that ignored Jeff's advice, it was made clear that the Handbook writers, and Marvel employees in general, were very recently told from a higher level they could no longer refer to the Ultraverse and Ultraverse characters because they were creator-owned.

Ultraverse "founding fathers" and creators have stated that this is not the case. While they are due to receive participant shares for use of the characters and the Ultraverse concept, there is no doubt that they signed work-for-hire contracts and that Marvel own the Ultraverse.

Steve Gerber ("Sludge") has made this the most clear publically. But Len Strazewski ("Prime") joined him stating, "My last interaction with Marvel regarding the Ultraverse was a settlement for my claim in the Marvel bankruptcy and it was settled amicably with some cash. The original Ultraverse agreement calls for the founders and individual character creators to get some additional percentages of sales--nothing more. It would not be difficult to execute and Marvel's ownership is clear."

And James Hudnall ("Hardcase") was happy to state, "The characters are not creator owned, but we do get a small percentage everytime they are used (or we're supposed to get paid anyway)."

And it appears, as Marc-Oliver Frisch reports, that past Marvel Universe Handbooks used Ultraverse characters fairly freely. In last year's "Official Handbook of the Marvel Universe: X-Men 2004," written by Eric J. Moreels, the entry for the Juggernaut character specifically mentions two Ultraverse properties, "Exiles" and the character "Amber Hunt" referring to a 1995/1996 Marvel/Ultraverse crossover.

On release of this title, Eric Moreels posted, "I can't speak for Marvel policy, but for my part it was a conscious and deliberate inclusion as I was a big fan of the All New Exiles series, even after Juggie was sent back to the MU, and I'm very glad I had the opportunity to acknowledge that time in Juggie's career. :) "

And more recently in the "Infinity Watch" entry in the Marvel Handbook Teams book published last month, Rune is mentioned as well as other Ultraverse characters.

Could it have been over problems that these Handbook mentions should generate royalty payments to their creators? Apparently not, as these mentions are regarded as "promotional." And since Marvel own these characters outright and there should be no difficulty in mentioning them.

So what changed? The books are not creator-owned. The creators haven't caused any problems. And yet despite a tendency to move away from properties at Marvel which can't be fully multi-media-exploited, it seems that Marvel is not blocking this, even if they spin the reason to their staff. Joe Quesada in a Newsarama interview stated that payments to Ultraverse creators was a "logistical nightmare" and that he didn't want to air dirty laundry-- a statement that baffled Ultraverse creators.

Strazewski said, "As far as I know, there is no dirty laundry to speak of." Hudnall added, "As for it being a 'logistical nightmare' to pay creators a percentage of a character usage, if Malibu could do it I don't see why it would be so hard for big bad Marvel... I have no idea what Quesada is talking about when he says there are some other issues. They bought the Ultraverse free and clear. They had no problem doing Ultraverse comics for a couple of years after they did that. I would love to know what he's talking about."

Talking to Ultraverse publisher Scott Rosenberg, he was also baffled as to the claims of "logistical nightmares" and "creator owned characters." He made it clear to me that the initial contracts were "industry standard" and both plain and simple. And that Malibu was able to run as a profitable business along these lines. And every Malibu employee I speak to confirms the simplicity of those contracts.

It could well be that the increased prominence the Ultraverse would have had in the Alternate Universe Handbook tripped a legal flag that had remained untripped by previous mentions.

It could be that CEO of Marvel, Isaac Perlmutter, had a reoccurrence of his allergy to publishing a product that Marvel do not benefit from 100%. Even though the Ultraverse payments may be low, it's the principle that counts-- especially where it concerns possible future multi-media exploitation. That is where Marvel has made most profit of late, with movies, toys and games. Since Marvel could not see full profits from those properties either, it makes more business sense for them to pursue other concepts, through both divisions. And Joe Quesada has stated how long and hard he fought to get the Icon imprint up and running - and even then, this has been justified internally as an SOP to retain creators that Marvel value highly. But for the Ultraverse, that justification isn't there. And to boot, the very simplicity of those contracts means that there is no wiggle-room.

It could be that there are other costs. The current direct market is very different from that in which the imprint was launched and published at Marvel, and may not support the same incentives anymore. Scott Rosenberg's own percentage interest in the Ultraverse is not a matter of public record, but Rosenberg assures me he's offered concessions if it would aid publication.

And the simplicity of those contracts could be at fault. It has been common for some companies to employ "studio accounting," finding ways to offset extra costs against profit, so that profit percentages re not paid out. But the Ultraverse contracts don't allow such interpretations-- something that caused Marvel lawyers pre-bankruptcy a few headaches.

So what hope for Ultraverse fans? Two options it seems. One, wait for a change in regime at Marvel. Two, appeal for anyone with a financial interest in the Ultraverse to relinquish their claims for a temporary period. Or third, a write-in campaign to show their support. Given the current situation however, the first route is probably likely to be the quickest.

Scott Rosenberg is President of Platinum Studios, LLC. He has produced the TV series "Jeremiah" and is working on a new "Witchblade" TV

series. Other projects include "Unique," based on Dean Motter's graphic novel, at Disney, "Cowboys & Aliens" at Sony, "The Darkness" at Dimension Films, "Mal Chance" at Miramax, a CG version of Dylan Dog

and a CG horror feature, "Bonesaw," created by Scot Rob Moran.

HG WELLS

IDW's "War Of The Worlds" project takes prose sections from the original HG Wells and illustrates them. The Wells estate receive nothing from this, as the book is out of copyright.

However, after the book was announced, IDW received a challenge from an individual claiming to control the rights to "War Of The Worlds" outside the US.

While this stance is debatable, IDW erred on the site of caution to avoid nuisance suits and have restricted sales to the USA only.

Ironic, considering it's one of the few versions of "War Of The Worlds" this summer that retains the fact that the book originally took place in Britain

MARK MILLAR

And finally, in this themed column, a creator fully in control of his creative brand, one who manipulated companies rather than let them manipulate him, Mark Millar's new revamped website will launch from the www.millarworld.tv address at the beginning of July. Can we look forward to a 24 hour webcam from his lounge?

THE VOTE

End of the six week experiment. I've enjoyed it. So have some of you. Well now's the chance, either way to make a choice.

VOTE A: Continue the column - as it attempts actual comics journalism. Notice the word 'attempts.' More in depth articles. Less ephemera.

VOTE B: Revert the column - so it becomes comics gossip again. Rumours, spoilers, bitchiness. The full dirt.

There is no third party vote. No, "A little of A, a little of B." Any attempt to vote this way will be considered a spoilt ballot.

Send an e-mail to lyinginthegutters@gmail.com with just the letter A or B in the subject. Then feel free to expand your feelings at length in the e-mail itself.

There will be threads on many Internet forums discussing the vote. If there isn't one on your favourite board, start one called "Lying In the Gutters - Vote A or B". I'll try and pop by to see how it's going.

You have until Friday midnight GMT (4PM PST, 7PM EST) to complete your vote. The result will be announced, along with the new column, next week.

SMALL PRINT

For other comic and non-comic book related nonsense, check out the Twistblog.

Discuss this column at the Lying In The Gutters Forum.

Vote at lyinginthegutters@gmail.com

And contact me on richjohnston@gmail.com

You can also write to me at 8 Robin Hood Lane, Kingston Vale, London SW15 3PU ENGLAND

Or call me on 0780 135082 from the UK or 01144780 1350982 from the US.

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