On “work for hire”
Within the mainstream of anglophone comics commentary and analysis, the hissyfit over the injustice of what’s known as “work for hire” reoccurs almost as regularly as the seasons. Certainly in recent years, at any rate, with a confluence of Hollywood film adaptations and scheduling windows for certain legal actions resulting in several ongoing lawsuits involving big-name characters. A recent decision affirming Marvel’s ownership of copyright to various concepts created by Jack Kirby, on the basis that they were produced as work for hire, has kicked off the latest round of angst and outrage, including a lengthy diatribe by Steve Bissette which I happened to read this morning. But this can probably be regarded as an example representative of the whole, which seems to run something like this:
In the late 1930s, early 1940s, or the 1960s, creator X developed character Y, who then appeared in publications of company Z (usually Marvel or DC). Character Y has subsequently enjoyed long-running popularity, earning millions and possibly billions for company Z, while creator X has received no income beyond the fee paid for the original character Y stories written and/or drawn way back when. Company Z asserts that those stories were produced as work for hire, meaning that intellectual property law considers company Z the effective “author” of the work and the owner of all rights to character Y. But with potential fortunes to be made, and no shortage of popular support for their campaign, creator X or his heirs find lawyers and potential witnesses eager to press a case for X as owner of some or all rights to character Y, along with profits from licensing, adaptations, other derivative works, etc.
Any decisions in favor of creator X are cheered by the greater part of the comics commentariat; for the most part, though, the courts usually seem to find in favor of company Z, which decisions are generally met with despair, moral outrage, etc.
And I could make a lot of comments on where I see rights and wrongs, in all this, but I’m sure most of those comments are already made frequently by others. I think it just might, however, be worth offering the perspective of a graphic designer on the issue of work for hire. Which is that, from a designer’s perspective, the endless battles and outcries over work for hire in comics seem awfully difficult to feel sympathy with.
I don’t have statistics to back this up, but based on my experience of our profession, nearly all graphic design work is effectively work for hire. Many times there may not actually be a formal contract, especially if a design client is small, in which case I believe that a designer could claim the rights to his or her work; such a claim might or might not be technically valid, but in any event it really doesn’t matter because a designer is highly unlikely to even consider pressing such a claim.
For which there are a few reasons. One is that most work of graphic designers just doesn’t lend itself to becoming a billion-dollar property. If a fictional character becomes popular enough, s/he will very likely be much-in-demand for use in comics, novels, movies, cartoons, video games, lunch boxes, action figures, underoos, etc., etc., etc. A web site design, book cover or subway ad, by contrast, not so much. Even if a design does achieve “iconic” status, adaptation will generally take the form of small, scattered “grass root” uses which would often be covered by the right to parody, and in any event would offer no single, large target for a lawsuit.
The best example I can think of in graphic design as a possible parallel with comics work for hire controversies is the Nike swoosh; purchased from design student Carolyn Davidson for $35, it would probably be regarded as a key visual component in one of the most highly-valued “brands” in the world, today. And while this episode has some measure of legendary status within graphic design, 1) that’s probably indicative of how rare such situations are, and 2) so far as I know, and for what it’s worth, neither Davidson nor anyone else has ever gotten particularly exercised about Nike’s vast profit from the transaction, on either legal or moral grounds. (One may or may not connect this with Nike’s later, voluntary gift of stock to Davidson, as one sees fit.)
Aside from the relative rarity of potentially large financial rewards for creator ownership in graphic design, though, there are one or two other reasons why work for hire is the prevailing custom, aside from habit which no doubt plays a role as well. One reason might be that designers work for fellow creators less often than is the case in comics. When creators are selected by, and agreements made with, decision-makers who often were or still are active writers or artists, themselves, there might simply be that much more readiness to evaluate the idea of creator ownership or some form of profit-sharing. Whereas in graphic design, clients often have little personal familiarity with designers’ position and might, naturally enough, respond to suggestions of departure from the familiar “I pay for it, I own it” concept with “I don’t even understand this, it seems weird and complicated, I’ll just call someone else.”
Perhaps the most important reason of all, however, is the nature of the graphic design creator-client relationship, which may be a good demonstration of the logical underpinning of the “work for hire” concept. Which logic, I kind of suspect, is often completely missed by those determined to see it only as a plot cooked up by corporations to screw heroes who do the real work. Maybe that’s what work for hire is and maybe it isn’t, but if it is that, I have to say that the plotters have done a remarkable job of shaping their plot to seem like it does actually have some other logic, if you actually look at it.
Because it seems relatively sound and at least arguably reasonable, within graphic design. A client wants to create something. But the client lacks some or all of the necessary skills to do the creating professionally. So the client hires a skilled creative professional to be their surrogate in the act of creation, and offers the creative professional a fee for his or her labor expended in the process. Ideally, the thing is created, the client is pleased, the designer is paid and the client is free to do whatever s/he wants with the work which s/he commissioned and funded.
This is work for hire, though frankly in graphic design we rarely use the term “work for hire” because that’s basically just what “work” is, generally. (Sort of like German apparently doesn’t bother with a term for “hung parliament,” because Germany knows no other kind of parliament.) For the many salaried “in house” designers, in particular, this type of relationship seems almost unavoidably natural; even for freelancers, clients usually come to us and commission work done at their behest, largely for a purpose specific to their individual or business needs. This seems naturally to lend itself to, even to conjure up the idea of, work for hire.
Whereas in comics, it’s a lot more plausible for a creator to have an idea on his/her own, which could potentially be purchased by any of several clients or even published independently, and which is then licensed to one client for specific, limited use. But it doesn’t have to work that way in comics and, in plenty of instances, works more like the standard graphic design scenario; moreover, it isn’t necessarily “either/or” and establishing which scenario a given work’s creation more closely resembles is, I believe, the crux of most legal controversies arising from work for hire.
Of course, we have courts to sort out the legal controversies, even if people dislike those courts’ decisions; as for the moral controversies I’m not sure that the graphic designer’s experience offers any directly-relevant guideposts. I’m not sure that there are really any “lessons” to be drawn from the comparison, at all, admittedly. Creator-ownership/profit-sharing are good things? Most people agree with that nowadays. Designers are schmucks for accepting work for hire? Possibly, though if so that would seem to invalidate any claim on moral right to a share of profits for comic creators who did accept work for hire; certainly not a “lesson” that would be uncontested. Perhaps the lesson is, contrary to my high school art teacher’s career guidance: go into comics rather than graphic design?
Or perhaps it’s that work for hire does actually make some sense as a legitimate business relationship, rather than being something solely explicable as an invention of The Devil, and that like all business relationships, the party which gives up cash is obviously taking some risk that it will prove a losing investment, but thereby securing the potential (which may of course vary tremendously) for nearly-unlimited increase in the investment’s value. And that in some professions, including creative professions, this is seen as a perfectly reasonable and in fact normal arrangement which, though it certainly may be a better or worse arrangement depending on specific circumstances, is not inherently a moral abomination.
Maybe something like that. But then, what do I know.