Jean-Marc Lofficier On The Consequences Of The Gary Friedrich Decision
Steve Bissette has requested that the post below, revised, should be spread near and far. Anything to oblige Steve. Readers may also want to check
ALERT, ALL COMICS CREATORS [Reposting, for a necessary (requested) edit; reposting all comments, too, after this main post. Apologies.]: With permission, I'm quoting key points my dear friend and own legal advisor/contract consultant (since 1992) Jean-Marc Lofficier raised on his posts to a Yahoo forum discussing Ty Templeton's cartoon concerning the Gary Friedrich v Marvel judgment. Jean-Marc succinctly notes WHY this judgment has changed EVERYTHING for anyone who has worked for Marvel, or what this judgment changes (probably irrevocably) about the landscape for all concerned:
"…with all due respect to Ty, he's talking (drawing?) out of his ass.
So to clarify again, here is what I thought is important to remember here:
1) This is the first time Marvel is using convention sales of copyrighted Marvel characters as a "weapon". They are of course perfectly entitled to do so, legally speaking. But it does mean that, from now on, all of you here who draw sketches of Marvel characters for money at conventions or sell sketchbooks containing pictures of Marvel characters are on notice that you might be sued (usually for triple the amount you made) should Marvel decide to go after you.
My legal advice to you guys is simple: STOP and destroy all sketchbooks for sale with copyrighted materials in it. I'm serious. You've just been put on notice by this case.
[Note: In a followup comment to a question on the matter of selling sketches/sketchbooks at conventions featuring Marvel characters, Jean-Marc added:]
If Disney and/or Marvel have a policy to deal with that sort of business, I would encourage anyone planning to sell sketches, etc. to contact them and obtain a waiver or a permission of some kind under that program.
— [name withdrawn] is incorrect about one thing: Disney, if not Marvel, does have a full office staffed with para legals of young lawyers whose only job is to look for copyright/tm infringements and send C&D (cease & desist) letters. I have seen them. They don't do it for the money or to be a pain the the ass, they do it based on the legal theory that if you don't actively protect your (c)/tm, you run the risk of it being used against you as an affirmative defense in an infringement case.
Based on the GHOST RIDER case, it is, in my opinion, only a matter of time until Disney, now aware of the issue, sends one of their young attorneys with a stash of blank C&D letters at conventions and start handing them out to everyone selling Marvel sketches without authorization.
Receiving that letter will oblige you to hire a lawyer and even if Disney lets you off the hook (which they probably will), you might be out of a couple of grands by the time the process is over — or you run the risk of being stuck with a $15K bill if you fight them.
Again, I emphasize: this is sound business practice for Disney; NOT doing it entails risks far greater than doing it. They have gone after children's nurseries before which had Mickey painted on their walls for the same exact legal reason. And that was far more time consuming and bad PR-wise that going after some comic book guys at artist's alleys.
It is only a matter of time.
So if they have a waiver/permission program as Ivan says, join it; if not, stop.
[Back to Jean-Marc's original, full post:]
2) Although there never was any serious dispute that Marvel owned whatever share of GR Gary Friedrich was claiming (personally, I'm not a mind reader but I think Friedrich was hoping for some kind of settlement), there remains two legal issues that Ty obviously didn't grasp:
2.1) When Moebius drew his SILVER SURFER with Stan Lee, he got royalties and he was still getting them when Starwatcher split in 2000. You will note that modern-day WFH agreements spell out that the money you're getting will be the sole compensation you will ever receive and you're not entitled to anything else. It is spelled out because if it is not, courts are at liberty to interpret the contract and decide whether or not you should be gettong something extra.
The back-of-the-check contract signed by Gary did transfer ownership of GR to Marvel, and the amount of that check was the consideration for publishing rights, but nowhere did it actually state (as it does today) that it was the ONLY consideration to which Gary might be entitled in the event of a film or a TV series. The Court could have easily decided that on the absence of that clause, Gary was owed something.
2.2.) There is a famous case about singer Peggy Lee who won her suit against Disney for their reuse of her songs in LADY & THE TRAMP on video, because that medium didn't exist when she signed her original agreement with the Mouse, and contracts at that time didn't specify the now standard "and other media to be invented in the future". The Court chose to interpret that lack of specificity in favor of Peggy Lee. When Marvel sold the rights to GR to the studio which produced it, they likely sold the video, DVD and game rights. These media did not exist when Friedrich signed his back of the check contract which did not list any and all future media. Therefore, based on the Peggy Lee case, the Court could have found that Marvel didn't own those rights, and therefore couldn't resell them, or, as in the Peggy Lee case, simply that they owe the plaintiff some kind of percentage, that's all.
So it remains my contention that Marvel owes "something" to Friedrich (and Ploog as well) based not on the publishing, but purely on the disposition of the multimedia rights to GR. That the Judge decided otherwise is a tough break for creators, and unjust.
3) Which brings me to my next point, which is that documentary standards are being unfairly applied throughout the judicial system, and somehow mistakes always seem to favor the corporations, not the small guy. The enforceability of a contract depends on accurate documentation which must be produced in Court. If you have a mortgage, but the bank cannot produce your properly signed promissory note, then the court has the possibility of nullifying your mortgage. It's happened in a few rare cases, but more often than not, people have been thrown out of their homes despite banks being unable to produce a properly signed note.
In this case, has any of you seen the back of the check signed by Friedrich?
Was that check properly endorsed? Was there anything crossed out? Why should mistakes in documentation automatically benefit the corporations, and the little guy should be held to standards of evidence that the companies themselves don't respect? Why did the Judge assume that the paperwork was in order & automatically benefited Marvel? What I'm saying is, if people can lose their homes despite proper paperwork, well, then, Marvel could lose GR despite its paperwork. It's up to the Court.
So whether or not you feel any sympathy for Gary and his cause, this is another loss for the Little Guy which, in the greater scheme of things, impacts all of us."
SPREAD THE WORD. SPREAD THIS LINK.
And QUIT doing, creating, selling ANY sketches or sketchbooks or prints featuring Marvel/Disney characters, IMMEDIATELY. And let fans know WHY you are no longer doing them, and/or CANNOT do them ever again.