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On “work for hire”

2011 August 1

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.

12 Responses
  1. Jeremy permalink
    August 5, 2011

    You nailed it Matt. I have been unable to articulate why I don’t have a lot of sympathy for the Kirby estate in regards to their recent attempt to cancel Marvel’s copyrights; but you have perfectly illustrated why I feel this way. As a designer I feel that all I do is work for hire, and I accept that as part of the profession I’ve chosen. Yes, I have rights that Kirby did not posses when he helped create these properties, but I treat it the same way. Then again nothing I’ll ever do will amount to a fraction of what Kirby created in his lifetime; if indeed it could I might feel differently.

  2. August 5, 2011

    Ironically, one of the few aspects of European copyright law NOT introduced into American law as it’s been “improved” by corporate-influenced Congressmen has been the aspect that authors/creators SHARE copyright on stories, even on “work for hire” like tv shows or comic strips with their employers.
    In addition, any characters created by the “work for hire” author/creators are owned by the creators and merely licensed to the contractor/studio/publisher.

    The BBC, much to their dismay, discovered that fact when the Daleks became a major hit on Dr Who.
    Writer Terry Nation created the alien race when he submitted the plot to “The Dead Planet”.
    When “Dalekmania” hit the UK with toys, books and feature films, the BBC had to pay Terry Nation for every usage of the aliens either on the show or in licensing/merchandising!
    Since then, ALL the characters on BBC programming are created “in-house” by staff producers/showrunners, then incorporated into stories written by staff or freelancers.

    DC and Marvel Comics also discovered that noted writer Alan Moore still has veto rights on reprints of his UK-created work both there and in the US, and has exercised them on several occasions!

  3. Matt permalink
    August 5, 2011

    I appreciate the comments! I’m very glad that I’ve been able to articulate one or two relatively fresh points in such a mined-out topic.

    Please stop by again.

  4. August 5, 2011

    I appreciate your points, Matt, but I wish you’d seen/read my 2nd installment (of four, most likely) before this. Well, how could you? It wasn’t posted until August 4th! In any case, Part 2 of my overview gets into the nuances of work-for-hire and my own experiences with it; in short, a lot of glib misdirection, mischaracterization, misunderstanding, and misrepresentation of work-made-for-hire is bandying about, and greater scrutiny and assessment IS essential. See my second part, http://srbissette.com/?p=12783, with two intensive investigations of Steve Ditko’s own writings about his years at Marvel to follow.

  5. August 5, 2011

    A key point, though: comics is NOT graphic design. There is a vital storytelling component that changes everything, and the coin of the realm in all but the graphics-only merchandizing from comics (i.e., t-shirts, posters, wall paper, Underoos, etc.) most often relies upon that narrative component. This links comics closer to literature and publishing standards that, until recently, were common to the book and publishing industries, wherein writers rarely are engaged under work-made-for-hire language (with the prominent exception of ghosted works, and/or licensed house author imprints, such as the Nancy Drew/Hardy Boys novels, Harlequin romances, etc.).

  6. Matt permalink
    August 5, 2011

    Steve: for once, a wish I can easily grant. Thank you for stopping by to bring me up to speed; I will start reading through the more recent installments shortly, here!

    And yes, the differences between the work of graphic designers and comics creators are more than superficial. The points you note are good additions to what I was getting at, and at all events I definitely do not want or advocate a one-size-fits-all approach to all creative work or intellectual property. Probably a point I should have made clear.

  7. (another) Matt permalink
    August 6, 2011

    Interesting post. I would also add that having worked in design and comics, I’d say that design is generally a lot easier and certainly far better paid.

    Personally, I accept work for hire, despite the rather poor pay, because it’s the only way I can really afford to work on comics. That said, I don’t think it would hurt companies to kick a few dollars back when their properties end up on (or in) anything other than comics.

  8. Aaron Malchow permalink
    August 6, 2011

    Matt,

    Given that most analysis of the Kirby lawsuit is placed in the context of either the comics industry or in comparison to film or publishing practices, the comparison with graphic design is a necessary alternative perspective.

    Not being a graphic designer myself, I am curious about the standard business relationship between a client and a designer. Do the majority of graphic designers work for graphic design firms? Or are the majority of them independent consultants? Or are the majority of them employees within a larger organization? Or are the majority of them working under a different system?

    I ask only in as much as I want to better understand the context of the comparison you are making, to see where the work relationship is similar or different from the relationships within the comics industry. In the ongoing comic book copyright arguments, comics creators have sometimes been part of a studio system, or they have been a freelancer, or they have been a contract employee, or even a salaried employee. As a writer who has been employed under several different circumstances, I know that the nature of my employment influenced my opinion about any ownership I felt towards the work I was doing.

    Aaron Malchow

    • Matt permalink
      August 6, 2011

      Aaron, I appreciate your questions! I’m going to write a follow-up post to address them.

Trackbacks and Pingbacks

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