Saturday, January 05, 2013

Truth, Justice, & The Corporate Conscience by Steve Gerber

I've been wanting to run this piece for a long while now but have never found the right time.  Still, there's no time like now, so here it is.  The article appeared in the now long defunct fanzine W.A.P., which was owned and published by Steve Gerber, frank Miller and Steven Grant - the issue I have has another article in it well worth reading, detailing as it does the rather shoddy treatment dished out to an older, un-named Marvel Comics artist, who I later discovered was none other than Jim Mooney.  Eventually I'll run that one as well as I feel that these pieces should be rediscovered.

Gerber was a true genius when it came to writing, and an absolute madman, and I mean that in the nicest possible way.  His humour was legendary - anyone that can create and write a character like Howard The Duck had vision beyond that of mortal men.  His passing both saw one of the most genuine outpourings of grief within the comic book industry that I've ever seen, and also left a void that will probably never be filled.  Others might dabble with his creations, but no-one can write them like Steve Gerber could.

Gerber was a tireless fighter for creators rights.  He fought Marvel for ownership of Howard back in the early 1980s and sadly lost, but he certainly paved the way for the battles that are going on today.  Indeed it's hard to find a case involving comic book characters before the court that doesn't cite his Duck case.  Along the way he publicly voiced his disgust with the way DC Comics treated Siegel and Shuster over Superman and Marvel with Jack Kirby.  These protests were done at a time when more than a few comic book professionals were reluctant to speak out for fear of jeopardising their chances for ongoing, or future, employment.  Not so Gerber - he called it as he saw it and damned the torpedoes.  That's why people loved him - he not only talked the talk, but he backed his words up with actions, more than once.  This article, which the majority of people either wouldn't have seen or, if they have read it, have probably forgotten, shows the passion of Steve Gerber, even back in 1975 when he first penned it.  In 1988, when Gerber revisted the article, he added this last line, "Fifty years of screwing creators is about forty-nine and-a-half too many."  Those words still ring true today, only it's now seventy five years, and not much has changed.

Sit back, read and enjoy.



Truth, Justice, & The Corporate Conscience
Steve Gerber

INTRODUCTORY NOTE
The following article was written in late 1975 and early '76 as the first draft of an assignment for Rolling Stone magazine. Until now, it has never been published. Rolling Stone, for reasons unknown to me, decided not to run it and paid a kill fee for the work I had completed on the piece.

No attempt has been made to update the text, though I have taken the liberty of cleaning up a few passages of overwrought prose. Apart from these minor edits, you'll be reading what I and many others in the comics industry were thinking and feeling thirteen years ago -- on the less-celebrated occasion of Superman's 37th anniversary.

Some changes have occurred in comics since this article was written; many things still need changing. Some of these are catalogued in a brief after-word to the article. — SG

As a kid with no noticeable athletic ability, as a prisoner in a school system which turned me off completely to reading, as an awkward, puttyish, bespectacled lump on an unrelievedly bland landscape of tract homes, Dairy Queens, and discount barns, I drew heavily on three sources for psychic sustenance: Hostess cupcakes. My imagination. And Superman.

It didn't matter that I never made king of the hill; that I couldn't hit, catch, or throw a ball worth shit; that the class cripple could outrun me in the fifty-yard dash; that I was a classic underachiever, a misfit, a loner, and victimized for it.

All that was true only in my civilian identity. At three-thirty, when the last bell rang, I could whip off my glasses, fasten the safety pin that held my terrycloth cape around my neck, and -- to this day I can almost believe it -- fly.

Pentagonal shield and big red "S" emblazoned in crayola on my t-shirt, I raced up and down the block, breaking up the littler kids' fights, lifting bicycles off the pain-wracked bodies of fallen novice riders, and otherwise aiding the oppressed, righting wrongs, and lending my fantasized superhuman abilities to the never-ending battle for Truth, Justice, and the American Way.

Granted, mine was perhaps an extreme case, but I was hardly alone in my adulation of the Man of Steel. Millions of my third-, fourth-, and fifth-grade contemporaries had, like myself, only three passages we could recite by rote. The Pledge of Allegiance, the Lord's Prayer, and "Faster than a speeding bullet!” Superman was an ideal. Not merely the physical marvel we could never be, but also the man who, though more powerful than a fucking locomotive, put his remarkable talents to work benevolently.

Superman was above machismo posturing. Somehow absent from his psychological makeup was the need to drag others down, bully them, spit in their faces, force them to concede their relative impotence. He embodied the righteous wrath of Moses, the mercy of Jesus Christ, and the innocence and accessibility of Wally Cleaver. He was, and continues to be, an inspiration to youngsters everywhere.

For Jerome Siegel and Joseph Shuster, however, he represents something quite different. "I can't stand to look at a Superman comic book," Siegel says. "It makes me physically ill. I love Superman, and yet, in my mind, he's been twisted around into some kind of alien thing."

Jerry Siegel works in a mail room in Los Angeles. He earns $7000 a year. Joe Shuster is legally blind, unemployed, and, with his brother who supports him, inhabits a shabby apartment in Forest Hills, Queens, from which he ventures out only occasionally. Both Siegel and Shuster are sixty-one years old. Neither is the picture of health.

In 1933, at the age of seventeen, Jerry Siegel and Joe Shuster created Superman.

For thirty-seven years, since its initial publication in 1938, Jerry and Joe have watched their creation evolve into a marketing empire: animated cartoons for theatrical exhibition, live-action movie serials, radio series, television series, cartoons for television, Broadway musicals, lunch boxes, Halloween costumes, coloring books, dolls, plastic models, and virtually every toy and article of clothing imaginable with the ironic exception of long johns. And during most of this time, Siegel and Shuster have remained mere spectators, all the income generated by institution they conceived lining others' pockets.

Now Ilya Salkind and Pierre Spengler, producers of the recent Richard Lester-directed Three Musketeers have purchased the screen rights to Superman for a reported three million dollars. They have budgeted fifteen million for the production of Superman as a serious drama to be directed by Guy Hamilton, whose credits include several of the James Bond pictures, and written by Mario Puzo, author of The Godfather.

Siegel and Shuster will realize not a penny from the cinematic extravaganza. Their names will appear nowhere in the credits. It will only be through the goodness of someone's heart if they receive so much as free tickets to the premiere.

Siegel and Shuster have shared in virtually none of the wealth their character has amassed for its publisher, National Periodical Publications, Inc. A court of law has ruled that they have no right to share in that wealth, because in 1938, for the grand sum of $130, they willingly, if naively, sold their interest in Superman forever.

The Superman concept sprang not from the far-flung reaches of the cosmos, but from the depths of economic deprivation in perhaps the most mundane of all possible settings: Cleveland, Ohio.

"There was the oppression going on in Germany and the Depression at home, and I was quite conversant with the terrible economic conditions and the plight of the average person," Siegel recalls. "I wanted so much that there could be a being who could straighten out the world and help the underprivileged and the oppressed. Joe and I thought, 'If only we could put on a colorful costume and use fantastic powers to help people!' -- that's what we would like to have done if we could've done it. And that helped bring about the creation of Superman."

The narrative presented itself to Siegel in its entirety -- the doomed planet Krypton, the lone infant survivor hurled to earth in his rocket-powered crib, the child's acquisition of prodigious strength and speed upon reaching maturity -- in a single sleepless night. The next morning, notes in hand, Siegel ran the twelve blocks to artist Shuster's home to enlist the latter's collaboration. Joe was enthusiastic and set about drawing immediately.

This initial version was titled "The Superman" and differed somewhat from the character which eventually saw publication. The most obvious variance was the lack of distinctive costuming, which would be added when Siegel revised and enlarged upon the concept a year later. Both versions made the rounds of the various newspaper syndicates and comic book publishers, and both met consistently with rejection.

In the meantime, Jerry and Joe established themselves as working professionals in the comics industry by selling several other, less revolutionary strips with titles like "The Spy", "Slam Bradley", and "Dr. Occult" to Major Malcolm Wheeler-Nicholson and his magazines New Fun, New Adventure, and Detective Comics. Nicholson was the only publisher to express an interest in Superman, but Jerry and Joe declined his offer to publish the strip, having found him slow to remit and difficult to work with.

Late in 1937, Nicholson folded, and a new organization, Detective Comics, Inc. [which would later become National Comics, Inc.; then National Periodical Publications, Inc.; and finally, today, DC Comics, Inc.], acquired some of the Major's magazine properties. On December 4, 1937, Siegel met in New York with his new publisher, Jacob S. Liebowitz. That meeting resulted in a contract agreement which stipulated that Siegel and Shuster would continue to produce "Slam Bradley" and "The Spy" exclusively for Detective for two years, that Detective would be sole owner of the material, that the creators would be paid ten dollars a page for their efforts, and that Detective would have first option on acceptance of any new comics features that Siegel and Shuster might originate.

So it was that in 1938, when Detective decided to issue a new magazine entitled Action Comics, Jerry and Joe submitted the Superman strip for consideration, and it was purchased at last. The first episode, prepared initially in newspaper strip format, was lovingly, meticulously cut up, repasted on thirteen comic book pages, and mailed to the publisher, who responded with a check, a letter chastising Joe for laying out pages with fewer than eight panels, and a release form which read:

I, the undersigned, am an artist or author and have performed work for strip entitled 'SUPERMAN'.

In consideration of $130.00 agreed to be paid to me by you, I hereby sell and transfer such work and strip, all good will attached thereto, and exclusive right to use the
characters and story, continuity and title of strip contained therein, to you and your assigns to have and hold forever and to be your exclusive property and I agree not to employ said characters or said story in any other strips or sell any like strip or story containing the same characters by their names contained therein or under any other names at any time hereafter to any other person, firm or corporation, or permit the use thereof by said other parties without obtaining your written consent therefor. The intent hereof is to give you exclusive right to use and acknowledge that you own said characters or story and the use thereof, exclusively. I have received the above sum of money.

On March 3, 1938, Jerry and Joe signed the release, and with that stroke of the pen abnegated any and all claim to whole or partial ownership of Superman, the creation on which they'd pinned most of their hopes and dreams for five years.

On September 22, 1938, Jerry and Joe were placed under contract to produce, through their studio in Cleveland, all stories and art for Superman for a period of ten years. In addition, a three-way contract was signed among Detective, the McClure Newspaper Syndicate, and Siegel and Shuster for the production of a daily Superman comic strip, which the two originators would also produce exclusively. It was clear by this time to all concerned that the Superman strip was a major success. Yet Jerry and Joe continued to be paid at the rate of ten dollars per page -- per complete page, including script continuity, art, and hand-lettering.
Shortly thereafter, Jerry requested a raise, whereupon Old Man Trouble first reared his ugly head. According to a press release issued by Siegel, publisher Liebowitz responded thusly:

... your letter ... took my breath away. I did not anticipate that when I asked you to come to New York to discuss this matter of newspaper syndication, that you would want to take advantage of this visit and try to boost your price on "Superman"

Don't forget that there are 64 pages in the magazine (Action Comics] and that there isn't any magazine being published today that can sell on the basis of any one feature.

Jerry had asked for fifteen dollars a page.

In June, 1939, Detective published the first issue of Superman, a magazine devoted entirely to the exploits of that character.

1940 saw the inception of the Superman radio program. In 1941, Paramount Pictures began to release what eventually totalled eighteen Superman animated cartoons. Siegel quotes another letter from Liebowitz, dated June 27, 1941:

Under the terms of our contract, you are entitled to a percentage of net profits accruing from the exploitation of Superman in channels other than magazines. These figures for the last year show that we lost money, and therefore you are entitled to no royalties. However, in line with our generous attitude toward you boys, I am enclosing a check for $500 which is in effect a token of feeling. [Emphases Siegel's.]

By this time, Jerry and Joe had begun to wonder if they'd been lied to.

Still, they continued working for Detective, and Jerry even created several more characters for their magazines, including Robotman, the Star-Spangled Kid, and the Spectre (all of which continue to appear, though none on a regular basis, in various National Periodicals publications today).

In 1943, Siegel entered the army for a three-and-a half year stint. Upon his discharge and subsequent return to the comics in 1947, he found the situation drastically different from when he'd left.

"National had stolen Superboy from me. I had submitted the strip to Detective for their consideration, and they had not accepted it. While I was in the army, I saw that they had started publishing the strip without notifying me or compensating me. In addition, Joe's artists were working directly for National. I felt there was a definite campaign on to take production of the [Superman] strip out of our hands, contrary to the terms of our contract."

The first lawsuit was instigated that year. Siegel and Shuster sought to prove that National had acted illegally in publishing the Superboy strip, that they (Siegel and Shuster) were entitled to an accounting of monies National had earned from the licensing and merchandising of Superman, and that, owing to the violation of the contract, they were entitled to ownership of the Superman character. There was also the matter of a comic strip entitled Lois Lane, Girl Reporter, which National published as a filler in the Superman magazine and provided to McClure for newspaper syndication, and which bore the credit: "By Jerry and Joe". Neither Siegel nor Shuster had ever worked on the strip.

In an opinion dated November 21, 1947, referee J. Addison Young of the New York State Supreme Court decided the case:

The terms of the contract of December 4, 1937, though primarily relating to the features specified therein, also related to future dealings between plaintiffs and Detective Comics as to other features and as to these other features Detective Comics, Inc. were given a first option to accept or reject them. In effect, therefore, the instrument of March 1st, 1938 [the release form signed by Siegel and Shuster for the first Superman story] represented the exercise by Detective Comics of the option granted to it by the December 4th, 1937 agreement.

That was that. National owned Superman, lock, stock, and cape.

Jerry and Joe won on the Superboy question, however, and on their demand for an accounting, and National was enjoined against further unauthorized use of their byline. A settlement between the parties, amounting to some $94,000, was reached in 1948. But, upon acceptance of that agreement, Siegel and Shuster signed away all rights to the Superboy character as well.

When lawyers' and agents' fees had been disbursed, Jerry and Joe were left with approximately $20,000 apiece. Two years later, they were broke.

Jerry went on to edit comic magazines for another publisher, Ziff-Davis. "When I was hired, I was given certain promises about how well they would take care of me if I came up with some hits. When I came up with the hits and I asked that they keep their word, why, they fired me. Then I became destitute.

"Now we enter the next phase. Impoverished, with a newborn child in the family, I pick up a newspaper and read that National has signed a $30 million television contract for Superman. I blew my top, and I wrote notifying the media that I was going on a hunger strike in protest. As a result, National sent emissaries around, and I began receiving small checks, which, over a period of years, reached the amount of $135 a week. This went on for many years until, in 1959, I managed to interest National in having me write for Superman again, this time at regular comics rates and with no byline."

(It should be mentioned, in fairness, that by the time immediately preceding Siegel's induction into the army, the amount paid for each thirteen-page Superman story had risen significantly, from $130 to $1000 per episode. Up to March, 1947, Siegel and Shuster had earned some $400,000 from their work on Superman, including certain royalties on merchandising and residuals on Superman stories written and drawn by artists other than themselves. It must also be understood, however, that a substantial portion of this amount went to pay other artists in Shuster's employ, that prior to 1948 there was no assurance the royalties were computed honestly, and that the total covers a ten-year period.)

From 1959 to 1966, Siegel remained with National, churning out as many as three scripts a week, attacking the work with, if anything, more gusto and fervor than in the early days. "I really gave the stuff everything. Here I'd originated Superman, written it for ten years, then I was off it for ten years," he says, voice rising with emotion, as if speaking about an addiction, "and when I came back I had this tremendous desire to give the character a lot of dimensions and humanity which I felt I had not done in the earlier material."

At least two of the yarns Siegel authored during this period are counted as classics by comics aficionados. "The Death of Superman", an "imaginary" speculation on the events surrounding the hero's genuine demise, won comic fandom's best story award for the year it appeared. "Superman's Return to Krypton", in which the adult Man of Tomorrow enters a time-warp and is hurled back to the planet of his birth to meet his parents, fully cognizant of what awful and unalterable destiny looms in their future, left the audience without a dry eye.

Moreover, despite all that had gone before, Siegel continued to originate new characters for the Legion of Super-Heroes strip, a spin-off from the contested Superboy series!

This seven-year burst of renewed creativity came to a conclusion, however, when hope surfaced of regaining ownership of the Superman character by securing the renewal copyright. Siegel left National again, forced to do so by a policy which has become standard operating procedure in the comics industry -- the back-of-the check "contract", whereby the writer or artist supposedly surrenders all rights to his material by the simple act of endorsing his paycheck. (More on this momentarily.)

Siegel and Shuster took their case to court again, and after ten arduous years of litigation, lost decisively. The validity of the 1938 release form and the 1947 court decision was reiterated and upheld by the U.S. District Court and the Appellate Court.

Siegel and Shuster's lawyers, the Coudert Bros. firm, advised against an appeal to the Supreme Court. And National Periodicals -- by this time part of the massive Warner Communications conglomerate which also owns Atlantic Records, Warner Bros. Records, Elektra/Asylum/Nonesuch, Warner Bros. Pictures, and various other publishing and entertainment enterprises -- held out the possibility of some sort of settlement after the Supreme Court appeal, or if no further litigation was undertaken.

The case was dropped. Months passed in which Siegel and Shuster received no further word on an arrangement with Warner. Finally, upon announcement of the Salkind-Spengler movie deal, Jerry and Joe took their case to the public, appealing for relief on ethical rather than legal grounds. The appeal took the form of a nine-page, single-spaced "press release" from Siegel, detailing much of his correspondence with Liebowitz during the late 30's and early 40's, decrying the condescending attitude of comics publishers toward their creative personnel, calling for a boycott of all Superman magazines and merchandise until his creators were given their due.

To get Warner's reaction to the Siegel press release I arranged to visit Jay Emmett, executive vice president in charge of publishing for Warner Communications. To reach his office, you ride an elevator 29 stories up from the streets and emerge into a corridor walled with burnished stainless steel. The ambience is one of entrapment, as though you'd risen 290 feet to emerge into a subterranean bank vault. A dignified male receptionist sits behind the desk in the waiting area, which is as silent and sepulchral as the corridor. After ringing Emmett's office, the receptionist queries me in a murmur about the weather. I murmur back that it's swell. We hear each other perfectly from opposite sides of the room. A secretary appears from the interior corridor, escorts me to Emmett's office. She is bright, cheerful, but she murmurs, too. She asks if I'd care for coffee. I say yes as she announces my entrance.

Jay Emmett, in shirt sleeves, seated in a swivel chair behind a low, heavy woodblock table, motions me in with a broad sweep of his arm, indicating that I should make myself comfortable on one of the thickly-upholstered sofas that ring the table. I do so. The secretary brings my coffee. On a tray. I ask Jay Emmett -- who never murmurs -- how he feels about Jerry Siegel and Joe Shuster.

"Warner Communications bought National Periodicals about six years ago, and all of the lawsuits between Siegel and Shuster and National predated us by about 20 years. However, putting legalities aside, the simple fact remains that Joe Shuster and Jerry Siegel created a very popular comics character, they may have created a whole comics industry by doing so, and Warner or National has a moral obligation to take care of two destitute creators of what became an industry." He is sincere, forthright, to-the-point. Eye contact good. Clearly executive material. But he is also the nephew of Jacob Liebowitz. Caution is advised.

"Your own relationship with Superman goes back farther than that, though, doesn't it?" I ask. "You were president of Licensing Corporation of America?"

"I started LCA in 1955 and sold it to Warner in 1968. One of our clients was National." It was Jay Emmett who put Superman's picture on all those lunch boxes. "Superman has always been a very cyclical character for licensing. Some years we made $15,000, others $300,000. As far as National is concerned, you gotta say there've been millions over the years made by Superman."

Back to Siegel and Shuster. "There was no wrong done them. Nobody asked them to sue. And if they hadn't, they'd still be making $100,000 a year apiece today. Even after the lawsuit, Siegel was rehired. Then he sued again. How many times do you give a guy a job back?

"No matter what we do, we're still gonna be the black hats, even when we pay them. The TV guys come into this office, which is rather opulent, I suppose, and then go to Shuster's apartment -- and I gotta come off a terrible man. I was gonna meet 'em in the mail room, but that's also opulent! Look, I think it's the right thing for a corporation to have a conscience. It sounds like a fucking platitude, but I really do believe that." He says this with conviction.

But he tenses slightly, squints, when I mention the public relations problem Siegel's press release is causing Warner. The story has been picked up by the Washington Star, the New York Times, the Associated Press; Siegel and Shuster have appeared on Tom Snyder's Tomorrow program and are slated for an interview with Barbara Walters. Emmett pauses, ponders, remembers I'm writing for Rolling Stone. Then: "Write your article, NBC have their show, CBS, ABC, they're not gonna keep this up. It's gonna be a dead story in two weeks, whether we do something about it or not. Stories don't last forever."

Siegel and Shuster -- and Neal Adams, the comics artist who has taken on the task of negotiating their case with Warner -- are aware of this. Reluctantly, they steel themselves to shoot their last big wad, a news conference at One Times Square with the backing of the National Cartoonists Society and the Academy of Comic Book Arts, presented under the auspices of the New York Press Club. If this doesn't turn the trick, they've had it.

The conference is a success. Major newspaper strip artists are everywhere in attendance. A telegram of support arrives from Milton Caniff. Kurt Vonnegut puts in an appearance. The networks, the local media send camera crews, sound men, reporters. Statements are read. Jerry and Joe are introduced to the reporters. Questions come fast and pointed. Siegel fields them adroitly, candidly. Shuster nods his head charmingly, enthralled and a little amazed at the attention suddenly heaped upon them. In the end, the fourth estaters exit believers in the cause.

Warner takes note and proposes what verges on an equitable settlement. After nearly 30 years of remonstration, conciliation seems at hand.

Even after all the notoriety, the furor, the righteous indignation, however, most of the story has gone untold. Whatever the outcome of their situation, Siegel and Shuster are but the tip of the iceberg, the most glaringly visible manifestation of a mindset and system of policies that have kept comic book writers and artists in chains since the nascent days of the industry.

From the beginning, comic book publishers have considered their product shlock -- lucrative shlock, to be sure, but shlock nonetheless. "The publishers," says Neal Adams, "have no respect for their product and therefore none for the people who produce it. Comic book writers and artists are considered a little bit crazy -- otherwise, why would they be doing comic books?"

Also since its early days, the field has attracted young artists, young writers -- eager, inexperienced, and, especially during the war years, hungry.

Jerry Robinson was one of those youngsters. Now a newspaper strip artist and past president of the National Cartoonists Society, he entered the comics field in the early 40's. "I worked on Batman. I named Robin, and I created the Joker. Joe Shuster used to work at the next desk from me. We were buddies. We used to double-date. It was a marvelous field then, like the beginnings of the film industry when everything was new. There was the first time you'd do a continuity shot, the first time you shot through a knothole in the floor, the first time you did a panoramic panel. It was an exciting new medium, and we were inventors."

Bob Kane, the creator of Batman, made a million-dollar deal with National rather than attempting to reclaim ownership of his creation -- this from Jay Emmett. Bill Finger, however, who wrote the first Batman story and, according to Robinson, created many of the villains and supporting characters, died in poverty. [Bob Kane's signature was on the strip; Finger's wasn't.] The publishers are selective about dispensing their favors.

"We didn't know what our rights were," Robinson recalls. "We were certainly aware of the characters' popularity. We were minor celebrities with kids. But it was so new. We were feeling our way. We had nobody to turn to. There were no rules. The screenwriters, the songwriters were just getting organized then, and we were even more dispersed. All of us created properties then and never even thought of our residual rights. We were naive enough to think that if this was successful, we were going to share in it somehow. The publishers did lead us to believe that. They were very paternalistic."

That paternalism persists today, but, partly as a result of the Siegel and Shuster matter, with the bitterness of a vengeful father whose children have reached rebellious adolescence and have dared to question hig omnipotence.

Unlike most fathers, the comics publishers do not aspire that their children grow up. They've made examples of Jerry and Joe, and the writers and artists have learned their lesson all too well: don't make scenes at the dinner table, don't embarrass us in front of our friends, or we'll cut off your allowance.

The operative theory seems to be that comics artists and writers ought to consider themselves fortunate to have such permissive parents. Who else's dad lets his kids sit around making up stories and drawing funny pictures all day while mooching off the household?

One six-year veteran of the business puts it this way: "I've seen guys come into the office practically trembling because they needed their checks really badly, and have to pussyfoot around with an editor who castrates them by telling them how bad their work is, who makes 'em sweat by waving that check in front of their faces while they wonder whether they're gonna make it to the bank before three o'clock. Just as an extra hassle the creator has to go through, the check gets dangled before him while the editor delivers a spiel about, 'Well, now that we have your work, we don't know if you really deserve this...'"

Nor do the hassles end when the writer or artist does get to the bank.

Release forms like the one mailed to Jerry and Joe in 1938 have become obsolete. Too risky for the businessman; the creators might refuse to sign. So today the instrument by which the author or artist supposedly divests himself of all claim to ownership of his works is stamped on the reverse side of his paycheck. An example of one such instrument is this one, printed on the back of every National Periodical Publications paycheck:

CHECK VOID IF THIS ENDORSEMENT ALTERED
This check is accepted as payment in full for the work performed, and literary and artistic property in said work; by the undersigned in connection with the story, copy, continuity, characters artwork and/or manuscript described on the detachable portion of this check, and of all the undersigned's right, title and interest, if any, thereto. The undersigned affirms that he was engaged by National Periodical Publication, [sic] Inc. to produce said work, and it has the full and sole right to copyright said work and to renew and obtain extensions of copyright in its own name for its sole benefit; that it has the full right of ownership therein and full rights of ownership in the use of said property for publication and republication in any form or media and for transcription by dramatization, movies, television, broadcasting, advertising, or for any other use, treatment, or adaptation and to alter same.
Signed 

In order to be paid for work already completed and delivered, the creator signs away all rights to characters, stories, reprint residuals, residuals on foreign sales, merchandising rights -- the whole enchilada.

At least one authority on copyright law, who prefers not to be quoted by name, posits that this sort of instrument might be deemed "unconscionable" in a court of law, as no prior agreement to its terms exists between the creator and publisher. Generally, the first time a writer or artist sees or hears of the statement is at the bank, just prior to making out the deposit slip. Forewarned is, after all, forearmed. So why should an intelligent publisher forewarn anybody?

Let 'em find out for themselves -the day before the rent is due.

Comic book artists and writers are still paid on a per-page basis, not by the hour or by the job, unlike freelance writers and illustrators in other fields. There's a reason. When printing and engraving costs go up, the publishers can make ends come slightly closer to meeting by chopping a page off the editorial matter of a book. In the past five years, comics have declined from an average of 20 pages of story matter per issue to 17. So although page rates have risen dramatically since the 40's (rates for writers now average about $18 per page; pencil artists around $40; inkers in the $25 range), it's all the creator can do to keep pace with inflation.

"It must be understood that the comic book industry is 20 years behind the times," states Neal Adams. "Therefore, the guys who run the companies still approach the question of the rights of artists and writers the way they did 20 years ago: it's the job of the creative person to produce for the businessman and the businessman's job to make money. Anything the writer or artist does is like piecework in a factory."

Written contracts, such as the one negotiated by Siegel, Shuster, and Liebowitz in September, 1938, are virtually non-existent in comics today. So far as anyone knows, only two writers -- Robert Kanigher at National and Roy Thomas at the Marvel Comics Group -- have obtained on-paper agreements with their publishers. Artists fare slightly better in this regard, but the terms of comic book contracts today are actually less favorable now than what Siegel and Shuster were able to obtain. About the best a writer or artist can get nowadays is a guarantee from the company of a specified number of pages per month of work at a fixed rate. No additional rights to the material, rarely even a paid vacation.

In return for its promise the writer or artist won't starve, the company gets everything: "There's a clause in Marvel's standard contract," writer David Kraft observes, "that says they can use your name and likeness in any manner to promote the books." The writer or artist who signs even sells his face.

Not that the companies are shy about appropriating the use of such bodily parts even of writers and artists not under contract. "They'll use your name and face on a calendar," Kraft laments further, "and not even give you a copy of the thing."

The advent of comics fan conventions has opened yet another door for the exploitation of artists and writers. Of late, the companies have been running these conclaves themselves. Marvel had its convention in 1975. National will stage a "Superman's Birthday" extravaganza in February, 1976. The fans pay money for admission to these events. The publishers profit. The writers and artists are expected to attend without pay, as they do conventions staged by fans.

It never ends.

AFTERWORD: WHERE WE STAND TODAY

Shortly after the press conference at One Times Square, Warner Communications announced that the company would pay a yearly stipend to the creators of Superman. Siegel and Shuster each would receive approximately $30,000 a year for life. Warner has honored this agreement and, according to some sources, even increased the amount voluntarily when the Superman movies proved successful. Jerry and Joe also received proper credit on all four motion pictures, and their "created by" credit now appears on every Superman comic book story.

Jerry Siegel no longer has to work in a mail room. He spends his time writing, originating new comics characters and concepts. (I had the privilege of working with him on one of these -- The Starling, which was published as a back-up feature in Destroyer Duck.) His imagination is still as fertile as it was on that sleepless night in 1933.

Joe Shuster is no longer a penniless recluse. When his health permits, he even attends an occasional comic book convention.

To the best of my knowledge, neither Jerry nor Joe was consulted when DC decided to "revamp" Superman.

Jay Emmett no longer works for Warner Communications. A few years after the Siegel and Shuster tumult, he was implicated in an elaborate stock and embezzlement scandal and was fired.

The comic book industry has changed since this article was written, but not enough.

Twelve years ago, the roster of mainstream comic book publishers consisted of Marvel, DC, Archie, Western (Gold Key), Harvey and Charlton. Most comics were still sold from newsstands. The only publisher in the category of today's "independents" was Mike Friedrich's Star*Reach Productions, which then occupied an ill-defined niche somewhere between the mainstream comics and the undergrounds.

In the late 70's and early 80's, with the growth of the direct sales market, we've seen the advent of Eclipse Comics, First Comics, Fantagraphics Books, Dark Horse, Comico, Vortex, and many other independent publishers that allow creators to retain copyright on their works and share at least equally in the profits they generate. Marvel's Epic Comics division offers similar arrangements to creators.

Even at DC and Marvel proper, creators of new characters now receive a 20% share in the merchandising of those properties. At these companies, however, the terms and amount of the creators' share is determined entirely by non-negotiable company policy, and the rights granted to creators are limited solely to financial compensation. Editors and publishers can still dictate the creative direction of a strip. If the writer or artist balks, he can still be fired, at an editor's whim, from the strip he originated.

At both major companies, and even many of the independents, work is still usually performed and paid for on a piecework basis.

Written contracts for writers and artists are no longer an oddity. At Marvel and DC, the terms of such contracts, however, still mainly consist of a guaranteed number of pages per month at a fixed rate per page.

Page rates have increased substantially, of course. The top rate now paid to non-exclusive writers at Marvel is about $60 -- more than three times the average rate in 1976.

At Marvel and DC, creators are still expected to sign away all rights to their material, the only change being that the supposed "contract" has migrated from the back of the paycheck to the voucher form. DC's voucher requires the signatures of both the freelancer and the company's representative; Marvel's remains a one-party "contract," signed only by the freelancer. Checks are not issued until after the voucher has been signed, which makes these instruments less favorable to the freelancer than the release form that Siegel and Shuster signed in 1938.

A system of royalties and reprint fees has been instituted at DC, but, as with the creators' share in merchandising, all amounts and percentages are determined by the publisher and are non-negotiable. To its credit, DC makes a serious effort to seek out artists and writers who no longer work for the company and pay any reprint fees and royalties due.

Marvel pays reprint fees when it feels like it -- usually only to persons currently employed by the company—and offers a system of "incentive" payments based on a percentage of cover price for copies sold. Unlike DC's royalties, the Marvel "incentives" are not guaranteed in writing, and Marvel is in no way obligated to pay them. The amounts and percentages may be revised, upward or downward, at any time and at the company's sole discretion.

No organization comparable to the Writers Guild of America, ASCAP, or even the National Cartoonists Society, which acts as a watchdog group but not a collective bargaining agent, yet exists to protect the rights of comic book artists and writers.

Comic book creators continue to die in poverty on a regular basis.

A Personal Note

When I began working on this article almost thirteen years ago, I had very little understanding of concepts such as "collective work," "work made for hire," "ancillary rights," "royalties," and so on. And, as is the case with most artists and writers, my desire to understand was minimal at best. It was my belief that "artist" and "businessman" were irreconcilably separate species, as alien to one another as "cat" and "rhinoceros." The artist who wished to remain pure and devoted to his work kept himself aloof from the crass, corrupting, materialistic influence of business.

My feelings were different by the time I had finished the article. By then it was clear to me, if nothing else, that the artist-businessman dichotomy was deliberately fostered and nurtured by the business people -- that it was to their advantage for creative people not to understand the intricacies of contracts and copyrights or the difference between legal obligations and verbal assurances.

As most of you probably know, in 1978,I was fired first from the newspaper comic strip of Howard the Duck, and then, a few weeks later, from Marvel Comics entirely. I had a contract -- two of them, in fact -- at the time, just as Siegel and Shuster did. What happened to Jerry and Joe had happened to me, though on a smaller scale and involving a character of less mythic proportions.

I sued Marvel. The lawsuit went on for years and cost well over $100,000. (Few attorneys will take a copyright case on a contingency basis.) Ultimately, the dispute was settled out of court. In the process, I found out more than I ever wanted to know about contract and copyright law. I am still not an expert in either field, but I've at least learned to recognize a red flag when I see one.

The particulars of the HTD case are of less importance than what it implies for all freelancers. You do not have to create the most popular comic book character in the world to fall victim to the Siegel and Shuster syndrome. You imperil only yourself by wilfully remaining ignorant of your rights and of the true nature of business practices in comics and other areas of publishing.

When I returned to comics full-time this year, I knew I would have to re-establish my presence by doing work made-for-hire assignments for a while. And I am. But I don't intend to do it forever. I'm not as strong as Jerry or Joe. I don't think I've got the stomach to fight a second lawsuit over some other "throwaway" character.

Keep Siegel and Shuster's long years of agony in mind each time you sign a DC or Marvel voucher and every time you read the words "work made for hire" above your signature. Ask yourself what traditions you're helping to perpetuate. Ask yourself whether you really feel invulnerable to the kind of strong-arm business tactics that, for a time, made a mail boy and a recluse out of the creators of Superman.

This year marks the Golden Anniversary of Jerry and Joe's 1938 release form.

Fifty years of screwing creators is about forty-nine and-a-half too many. --SG

2 comments:

Jim Keefe said...

Essential reading for anyone in the field.

Chris Bigbak Bakunas said...

Thanks for putting this up!