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Tuesday, February 14, 2012

Gary Friedrich & Marvel: Fact vs Rumour


On Thursday morning I unleashed a can of worms about Marvel Comics and their shoddy treatment of GaryFriedrich.  I then shared the news with a few people, notably Norm Breyfogle, and hoped that it’d cause a bit of a stir throughout the comic book community and make people want to help the man.  Truth be known I wasn’t that confident as I’d posted previous reports on the progress of Gary’s case, including one post where I mentioned that Marvel might hit the man with a bill, but not many people seemed overly interested.  So it goes.  However once Marvel did hit Gary with the bill – a $17,000 bill – people got very frustrated and, rightly so, upset.  Now it’s gone totally viral with anyone and everyone weighing in with an opinion – and that’s not a good thing, it’s a GREAT thing.  From Mike Mignola and Neal Adams donating art to Steve Niles setting up a donation page, and more, the response has been overwhelming.  I’ve yet to hear from Gary, but, honestly, I don’t expect to.  I’m happy knowing that what I’ve started has reached hundreds of thousands, and not just comic book fans, and that Gary is getting some much needed financial support.  That’s the goal – it’s never about personal gain, it’s about helping others.

The only downside was that with all of the reporting, the actual facts behind Gary’s case has turned into a Chinese whisper of sorts.  With that in mind I’d like to help clear up some misconceptions that have been floating about the internet surrounding Gary’s case, so here we go.

RUMOUR: Marvel are preventing Gary from saying he is the creator of Ghost Rider.
FACT: No, they’re not and in reality, they can’t.  Gary can say whatever he wants, to whomever he wants.  He can say he invented the toasted cheese sandwich if he wants to, Marvel can’t stop him.  The relevant section of the Stipulation and Order states that Marvel is, “…permanently enjoining plaintiffs (Gary Friedrich) and all natural or legal persons acting on their behalf or in concert or participation with them from manufacturing, reproducing, distributing, adapting, displaying, advertising, promoting, offering for sale, selling, using or purporting to authorize others to use the image of any characters appearing in, or any copyrightable material expressed in, the Work or any materials that are substantially similar to, or based on, any element of the Work in connection with the sale of any goods, merchandise or services including, without limitation, publications, posters, toys, games,” and so forth.  And addition to this states that, “provided, however, that such injunction shall not prohibit plaintiffs from selling Gary Friedrich's autograph by affixing the same to a product manufactured by MCI or by others under license or permission from MCl and purchased by plaintiffs at retail.”

Further into the order it states, “…plaintiffs consent to an injunction enjoining them and all natural or legal persons acting on their behalf or in concert or participation with them from using or purporting to authorize others to use the words "Ghost Rider" as a trademark, trade name, or similar designation of origin in connection with the sale of any goods, merchandise, or services.”

What this means is that Gary CAN say that he created Ghost Rider.  If you ask him to, he can sign your comic books, artwork, posters and prints – no problems.  Gary can also sell signed merchandise, but the merchandise has to be official Marvel licensed goods, bought at retail.  If Gary approaches an artist to draw images of Ghost Rider, has he has done in the past when he commissioned Arthur Sudaym and Herb Trimpe to create original art which he then had made into prints, then he’ll be in breach of the court order (you can see the Trimpe images here).  If Gary makes his own Ghost Rider related products, such as a comic book, print or poster, or even a T-Shirt, then he’ll be in breach of the order and Marvel will on him like ants on a sugar cube.  However he can, rightly, say that he created Ghost Rider.

RUMOUR: Marvel want Gary’s money.
FACT: Well, yes.  Legally Marvel are in the right here.  They claim that Gary has profited from their trademark to the tune of $17,000 over the past few years, mainly from selling the aforementioned Sudaym and Trimpe prints.  For Marvel this is justified and legally they’re right.  Morally and ethically?  Make your own judgement.  Marvel could have waived the $17,000 counter-claim but have elected not to.  

In early January Friedich’s lawyers wrote to the court asking for leniency and explaining his financial situation, including the $100,000+ that he now owes in legal fees – you can see this letter here.  As such Marvel were well aware of his current situation but instead decided to go for the cash.  They could still waive this, even now, but have remained silent on the issue.  Marvel would rightly feel aggrieved about Gary bringing action against them, and it’s cost them a lot to defend it, in the same way that it’s cost Gary a lot to mount the action.  Undertaking such actions is always a roll of the dice, and, sadly, the courts don’t always look at what’s fair, only what’s legal.


This would now mean that any creator who was thinking of undertaking a similar action against Marvel should now think very strongly before doing so.  If Jim Starlin wanted Thanos, or if Marv Wolfman went after Nova and Blade (again) then they could lose and lose big, as Marvel would ask for an accounting of any profits realised from non-licensed items and demand those profits.  This is the new Marvel, and the Kirby estate could consider themselves somewhat fortunate that Marvel haven’t asked them to account for any monies that they’ve made on any non-licensed Marvel images drawn by Kirby that their father co-created at the company.

RUMOUR: Marvel haven’t paid Gary for his Ghost Rider work.
FACT: Actually, they have been paying him. As you can see from these images, Marvel had been paying Gary his royalties all the way up to, and including, 2010.  I don’t know if they’ve paid him anything of late, but I doubt they’d leave such a loophole open.  It’s not anywhere near what Marvel should have been paying him, it’s chicken feed really, but they have accounted for and paid him what he was due.  They paid him for his work at the time as well.  Where things fall down a bit for Marvel is that Gary has stated that Marvel only began to pay him royalties after he commenced legal action in 2006.  Marvel don’t deny this and have stated that they only started reprinting Gary’s Ghost Rider work in 2005 with their first Essential Ghost Rider volume.  That’s their story and they’re sticking to it.

On the other hand, Marvel has made millions from Ghost Rider, and will do so again this year, so a couple of thousand here and there is a drop in that bucket.  I also expect that Marvel will be getting the money they’ve paid to Gary back as part of the $17,000 that he now owes them.

RUMOUR: Marvel made Gary sign a shitty contract and didn’t allow him to source and legal advice.
FACT:  That’s a matter of debate.  Marvel had Gary sign a standard contract in 1978, shortly after the copyright laws changed.  Marvel have stated that, “…apart from Friedrich’s self-serving assertions, there is no evidence regarding the circumstances under which Friedrich signed the 1978 Agreement and the agreement speaks for itself. Defendants also dispute that the 1978 Agreement only applied to Friedrich’s work for Cadence.”  At the time Gary has admitted that he wasn’t in a good space, head wise, and needed the work.  He says he signed that contract on the promise of work to come – work that never eventuated.  A lot of others did the same at the time and did get more work; some signed and never worked at Marvel again.  It was a form contract; Gary signed it, as did Roy Thomas, John Romita, Alan Kupperberg, Herb Trimpe, Mike Esposito and almost everyone else connected at Marvel at the time.  When the contracts were sent out, they were accompanied by a letter from then EIC Jim Shooter advising people that they were free to consult a lawyer or to call him direct. I've not heard of one person who actually did consult a lawyer though - such things cost money.

What would have happened if those working at Marvel had not signed the agreement?  It's doubtful that if they’d ever have gotten any more work from Marvel.  The 1978 agreement was a vicious document really and, when you consider that sword hanging over their heads, you could say that Marvel did make Gary sign a shitty contract that saw him sign away his rights to Ghost Rider.  Gary did the right thing at the time, he signed.  However Marvel didn't live up to their end of the agreement and instead left him out in the cold.

Where does all of this leave Gary?  Well, as stated, he’s getting long overdue financial support from the industry that he once worked in.  He’s still going to fight for his creation, and rightly so.  This battle is a long way from being over and hopefully those who have come on board in the past few days remain on board.  Now that Gary has support in his fight the hope is that Marvel might sit down at the table and finally negotiate a decent settlement that benefits both parties.  Such a settlement would definitely result in positive publicity for Marvel, as it stands their name is slightly tarnished over this turn of events, but there is an out for all.  If the word keeps spreading, as it has been, and hits more mainstream media, then this might well have a serious impact upon the bottom line of the forthcoming Ghost Rider movie, and, in the corporate world that Marvel has now become, money most certainly talks louder than people.










3 comments:

The Seditionist said...

DAniel:

Props to you, you're doing a great job on this.

That said, I'm still confused by a couple of things.

Where exactly does the $17,000.00 come from? From an earlier post, I thought it was a settlement sum to which Friedrich's lawyers agreed. I mean, Disney/Marvel can't just compel payment of a sum like that without some due process. So really, either it's something Friedrich's lawyers agreed to for reasons I'm not clear about; they fought the counterclaim but ineptly; or they didn't really fight it at all.

As I may have noted here the last round, I'm bothered by the basis of the decision: the 1978 agreement. The judge essentially treated it as if per se it was a legally binding agreement. Without going too deep into contract law in the US and New York, I dunno that a promise to maybe offer work someday maybe in exchange for intellectual property is enough to make the agreement binding. (Which may have been why Kirby's agreement wasn't the standard 1978 agreement but a far more detailed one. Marvel must have known that with Kirby there was a real potential for, uh, issues.)

So the judge made up the argument on her own or it was briefed. Again, there's the issue what kind of fight Friedrich's lawyers put top, if any.

Friedrich and his company are judgment proof. This fundraising therefore might actually end up going to Marvel instead of staying with Friedrich. Let's parse this: Raising money to enable a judgment-proof party to pay a judgment of dubious good, as it were. (Even if Friedrich wrongly sold the prints, it was not at the cost of a penny to Marvel; another reason it smells.)

You what would be a better fundraiser? Raising a retainer for competent counsel. Present counsel. Stinks. Which is not to say I can't be wrong. Maybe they did an excellent job.

Now I'm off to take a better look at the documents and see....

BK said...

thanks for posting these!

The Seditionist said...

Not to get all self-referential but I looked over the recent round of documents because, as I noted, this is all a little sketchy.

My thoughts, such as they are, are here:

http://bookofdoomed.tumblr.com/post/17652532004/apropros-the-web-by-s-storm-over-the-freidrich-matter

And by the way: I thought it was a little classy of Buckley and Quesada to make a statement but on one hand I was underwhelmed by what they said but, as noted, there was also very little that they could say.