Gary Friedrich vs Marvel Comics: It Begins - Opening Appeal Brief
Right on time, here's the opening brief for Gary Friedrich, as filed in his appeal against the recent victory of Marvel Comics and the Ghost Rider character. As expected the appeal is relying on the ambiguity of the Marvel contracts, in particular the retro-active contracts that Marvel had their freelancers sign in 1978. If you believe Friedrich, those contracts were signed under some duress, with Friedrich stating in his deposition that, "I was given an agreement at that time by Sol Brodsky and told that if I wanted to continue to work for Marvel that I would have to sign it." That claim of duress isn't isolated to Gary Friedrich, other creators have said the same thing, some, such as Don McGregor, walked from Marvel instead of signing it back in the day, however for Friedrich it was a double blow - he signed the contract and stopped getting work at Marvel.
There is one minor fact that has been missed, a loophole that might come in handy at some stage.
At one point during Friedrich's deposition he was asked the following question: "Q. Are you aware of whether any other freelance writer of Marvel comic books owned the rights in any of the characters or stories created by that writer," in relation to the period of 1971 to 1978. The answer was no, and Marvel's lawyers accepted that, for the understanding in this case is that everything produced by Marvel in the 1970s at least, belonged to Marvel and was duly copyrighted. This isn't the case. In 1978 Marvel published The Silver Surfer, a graphic novel which contained a copyright legend naming not Marvel, but the books authors - Stan Lee and Jack Kirby. Importantly it falls on the cusp of the work-for-hire contracts, but a savvy lawyer might well be able to argue that Marvel did indeed produce work that was owned not by the company, but by the authors from the time period of 1971 to 1878. Unfortunately this news might have come a bit late to be of any use to Gary Friedrich, but the battle isn't over yet.
It's a small loophole, but it might be a dangerous one for Marvel...but, as it stands, the overall negative publicity that this case has generated for Marvel must surely be biting. The Brief addresses the contentious demand for $17,000 from Friedrich by Marvel, and challenges Marvels demand that Friedrich not profit from his status as the creator of Ghost Rider by pulling forth arguments about Friedrich's right to earn a living, as he has done in the past, by exploiting the Ghost Rider character by selling signed merchandise (merchandise, it's worth pointing out, was either donated or outright purchased by Friedrich). It might be too late for Marvel to settle the case quietly, but it could still save a lot of face by simply doing the right thing by it's creators - as it stands the stance towards it's old creators the Marvel Comics of 2012 has a lot in common with the DC Comics of the 1960s and '70s. That this is the case is more the shame - in a perfect world lawsuits such as these wouldn't be necessary as the creators would be sharing in the profits - even 1% of the gross would be more than enough for most. After all, if they won't hire the creators to work, then they do owe them a debt for giving them the means to make an empire - after all, even George Lucas shared the profits for Star Wars amongst the cast and crew.
In the meantime, here's the Opening Brief, and watch this blog for a few explosive documents from this case in the coming weeks, if not days...
Comments
But...is that enough of a loophole?
2. A Marvel arrangement with Lee and Kirby (and Lee was an Marvel employee is a separate issue and probably would not be allowed in as evidence of anything. Marvel relationship with Lee and Kirby is allowed to be different than theirs with Friedrich and probably not relevant.
3 The big thing: there is often a misunderstanding of the word duress, the legal definition and the normal one.
Duress is commonly used to describe pressure, even undo pressure to get someone to do something. You have Friedrich stating: "I was given an agreement at that time by Sol Brodsky and told that if I wanted to continue to work for Marvel that I would have to sign it."
Well, that’s not duress. That is Marvel being tough but legal.. Marvel said if you don’t follow our conditions, you are out. And honestly, if you’ve worked enough you get stuff like that
Duress is when you threaten harm to life or property to get someone to do something. Threatening them with being fired, is not duress, it’s pressure. The Golfather putting a gun to your head is duress.
“duress n. the use of force, false imprisonment or threats to compel someone to act contrary to his/her wishes or interests.” And “Duress also exists where a person is coerced by the wrongful conduct or threat of another to enter into a contract under circumstances that deprive the individual of his or her volition.”
Threatening to fire someone is not wrongful conduct anywhere, unless you are asking them to do an illegal act.
The fact still remains, Gary signed the contract and didn't work at Marvel again. That's a shame.
Also (assuming it wasn't a mistake), as the original book used the Surfer with Marvel's permission, is the copyright of the story any use if Marvel had decided not to allow future reprintings? The point being that, if the owner of the character in a story doesn't belong to you and you can't use the character without the owner's permission, then surely, in effect, it's redundant.
Perhaps it was just Marvel's way of saying that THEY wouldn't reprint the tale without Stan and Jack's agreement, which they'd be unlikely to withhold if there was money involved?
Any thoughts?
Danny, I am never going to argue with you!!! I am not saying what Brodsky did was nice, just that it’s not illegal or unusual. The legal term for duress doesn’t work here. I’ve had bosses ho have said similar things, do it “their” way or find another job. (only when I was younger)
And Gary admitted that he, on drugs and alcohol, went on a year voyage in a car with a friend and no one was able to get in touch with him. This was not Marvel saying that, it was Gary.
And my brother, Aaron Stack, feels the same way!
You're right about Brodsky - it was no different really to how DC treated their staff - like cattle - in the '50s and '60s. And there were more than a few writers and artists who refused to sign, walked and still worked at Marvel in the future. Gary signed and didn't work for them.
As for Gary's deposition - watch this space...
Kid - I'm not sure if the reprint carried the same notice. I was always under the impression that it was a concession from Marvel to get Kirby to work on the Surfer once more, that he could own the copyright. However, according to Greg Theakston's Jack Magic Vol II, when Kirby finally left Marvel in the late '70s he still owed them money - according to them the book made nothing of note. Hollywood accounting I suspect.
I'd love to see if the reprint has the same copyright notice. If it did mean that Stan and Jack couldn't reprint the story without Marvel's permission due to the fact that Marvel owned the characters - such as the Surfer and Galactus - then surely the opposite also applies? hat being Marvel can't reprint a STORY that BELONGS to Stan and Jack without their permission? And what of Ardina? She was an all new character that Stan and Jack introduced - surely that copyright notice would mean that THEY own it, not Marvel?
Such a mess...
I think one of the biggest problems fans have with these types of lawsuits is that they attempt to apply morals and values into the legal system and business world. Sometimes we get caught up in the notion of black and white. Right or wrong. There is not one shred of proof that he created the Ghost Rider on his own and that he has any claim to the character. Just like with the asinine Kirby case. These people in many ways dug their own holes. The biggest reason that work dried up for Gary at Marvel was because he was chronically late and there were alleged reports of substance abuse issues. I love this hobby and have enjoyed it for almost fourty years. I just wish I could log on to one of these websites without reading about another creator or his heirs suing for something they have no claim. They have made bad financial decisions and now they are after a quick money grab. They employ some morally bankrupt ambulance chaser. I know it is easier to vilify these major corporations, but I wish the fans would research the creators and people that represent them before making ridiculous comments. We live in the information age. We have more knowledge at our fingertips than ever before. There is no reason to post ignorant statements.
In this case, which I feel is far stronger than the Kirby case, there is the anecdotal evidence to support the claim that Gary did create Ghost Rider. If he didn't, as you claim, then who did?
Despite Disney's stance otherwise, characters are not created by a company - people create them. They are owned by the company.
The copy I bought of the book was remaindered, but, like yours, it was a second edition from the '70s. (Not the fairly recent reissue.) If it didn't make any money, then why publish a second edition? As you suggest, 'Hollywood' accounting.
You're also right about the situation being a mess. Maybe one day someone will be able to clear it up. Let's hope so.
Roy Thomas: “I had made up a character as avillain in Daredevil — a very lackluster character —
called Stunt-Master...a motorcyclist. Anyway, when Gary
Friedrich started writing Daredevil, he said, “Instead of
Stunt-Master, I’d like to make the villain a really weird
motorcycle-riding character called Ghost Rider.” He didn’t describe him. I said, “Yeah, Gary, there’s only one thing wrong with it,” and he kind of looked at me weird, because we were old friends from Missouri, and I said, “That’s too good an idea to be just a villain in Daredevil. He should start out right away in his own book.” When Gary wasn’t there the day we were going to design it, Mike Ploog, who was going to be the artist,
and I designed the character. I had this idea for the skullhead,
something like Elvis’ 1968 Special jumpsuit, and so forth, and Ploog put the fire on the head, just because he thought it looked nice. Gary liked it, so they went off
and did it in back office for three hours.”
Danny, people get mad us because we try to use facts, not rumor.
Now I cannot say, for sure that Thomas and Ploog did most of the heavy lifting, all I can say is they said they did.
In the coming days I shall be posting the full depositions of both Gary and Roy - and yes, they are at odds with each other.
You asked who did create Ghost Rider? It is listed as Gary Friedrich, Roy Thomas, and Mike Ploog. Who created what? It really does not matter. The character was created for the sole purpose of Marvel comics. Everybody working on it knew it was for Marvel comics.
You are correct that people create and not corporations. What you did not mention is that people create for corporations. Which is what happened in this case. They knew the rules and who owned what. Should the rules be changed now because they have made bad life decisions? We cannot make up the rules as we go along. That is not how the real world works.
Dennis O'Neil named the Transformer Optimus Prime. Jim Shooter created the backstory of the Transformers and the whole concept of the civil war between the Autobots and Decepticons. I have never heard either of them cry and moan over not getting credit or trying to sue Hasbro. How many toys do you think Hasbro sold with their ideas? How many millions did the Transformers movies make? Look at Larry Hama and G.I. Joe? There is no Joe franchise without him. Yet, when he is asked about working, molding, and creating that franchise; his response is always "It was just a job."
Those are examples of pure professionals. I guarantee you that more people in this world know Optimus Prime and Snake Eyes than they do Ghost Rider. The people we are talking about are commercial writers and artists. They will create and write about anything if there is a steady paycheck in it for them. Marvel has actually been very lenient with Gary. Something that I do not think has come across in your postings. Gary started this legal mess. Gary has no one to blame but himself for the financial shape he is in.
I once again apologize if I annoyed or angered you. I am a huge fan of yours. I just wish we lived in a society where people accepted the blame for their actions.
James Howell
I no authority on the Superman case, you are! But Siegel and Shuster tried to sell Superman to the comic strips for years and failed. When DC got the property they were able to sell it to the comic strip syndicate, and to the radio show and to the movie serials and to the lunchboxes and breakfast cereals. That sort of marketing takes time, money and talent, none of which Siegel and Shuster had or were successful in. Yet many people today want to throw those efforts away and say Siegel and Shuster did everything.
Now, the Kirby people say the same. (wait until my next blog!) That he was responsible for everything. Remember when Kirby needed an agent, Jack Schiff to sell Sky Masters he didn’t want to give him any money because Kirby felt Schiff did nothing. All he did was sell the strip, Kirby drew it.
GF, in his own words, was an alcoholic and a drug addict. Worse, I spoke to an artist he worked with and he, frankly, could not do his job. The artist is a good, honest guy, who told us in some details HIS experiences with GF. And he had no sympathy for someone who left him in the lurch all the time.
PS I would do nothing on your site anonymously. I would send you a private email, which I have.
Did you get my Aaron Stack reference? he was machine Man, a robot.
Gary's flaws at the time are all too obvious, and he never shied away from listing them in his deposition. However if we were to apply substance abuse as a negative against creators then we'd never look at anything Wally Wood ever did, amongst others. I know quite a few people who've regaled me with stories of drug use amongst Marvel and DC artists and writers in the '70s and into the '80s, so Gary wasn't alone there.
James - no harm done. I get a bit shirty when people do comment without leaving a name but if you're prepared to sign things then great - glad to have you on board and, by all means, if you don't agree with what's been said then definitely speak up. I don't intend to have a blog for sycophants and I love a good debate.
With Ghost Rider, well, Roy, Mike and even Stan have said that Gary brought the character to Marvel - so, technically, it wasn't created for Marvel under work-for-hire. The argument here is if the contract that Gary signed in 1978 gave them Ghost Rider, and if the cheques that he signed, with the legend on them, also meant that he signed it over. The judge said yes...
I am just saying that he didn't make himself available for more work, he went on that road trip.
He also worked in a profession not know for giving credits rights. If you didn't get it in writing you were screwed and foolish.
Tarzan needs to get the laptop away from Cheetah, the drivel I've read in some of these posts.
Al - you're entitled to your opinion, as is James and anyone else that comments here. All I ask is that people sign their names to their comments. Anonymous comments will be deleted - which is why I removed that functionality. We don't all agree - hell, I don't agree with a lot of what James has said, but there you go.
Michael - I agree. It's not ok to attack either Stan or Jack, and I expect you to leap in there and defend him, as I'm about to do shortly. As for the substance abuse statement, if you read what I said, my point was that if we're to ignore what Gary has said because he's admitted that he was an alcoholic, then do we ignore anyone who had a substance issue? It's well known that Wally Wood - a giant amongst artists and one my personal favourites - also had an issue with the bottle. It doesn't make his talent and achievements any less valid, as Gary's creation of Ghost Rider is no less valid.
Let's get in there.
The only comparison that anyone can really make between Jack Kirby and Rob Liefeld is that both were popular with the masses. Other than that there's an entire universe of difference between the two men. Kirby created original characters, Liefeld's characters are all thinly disguised derivatives of other people's works. Supreme? Shaft? Youngblood? Please!
I would argue the point about Cable and Deadpool being the most popular characters of the last twenty plus years. Hell, even Spawn got a movie, as did Mystery Men, Men In Black and others. For the record - The Teenage Mutant Ninja Turtles are easily more popular than not only both Deadpool and Cable combined, but all of Liefeld's 'creations' combined. I really don't rank Liefeld as a creator, certainly not a writer and barely as an artist. And, in regards to Cable, I think you'll find that Louise Simonson did the bulk of the work in the creation of that character...but that hasn't stop Liefeld from claiming sole credit.
Jack Kirby needs to be recognised, by Marvel, on the books, officially, as the co-creator, and, in some cases, the sole creator of a lot of their characters. I don't blame him for being bitter - even Joe Simon devalued his contributions to the creation of Captain America.
With Gary, I can't help but think that a deal could have been brokered, but that's not how the Disney Corp works these days - everything is owned by the company and nobody, other than the company, has ever created any of the characters, other than Walt Disney's Mickey Mouse...
As you'd be aware, as recently as a few months back, comments were left under the guise of Anon attacking everyone except for Jack Kirby (including attacks on me). I have a good idea who the people were, once I removed that ability the attacks stopped, but then restarted on other blogs. Amazing really. Those people are free to comment here, but they'll have to leave their names, something they refuse to do.
I'm all for free speech and I don't expect everyone to agree with my views, or what I write. I do my best to remain impartial, but the truth is that, no matter what I write, people interpret it as they see fit and see whatever bias suits themselves.
And I agree - attacking Stan, Jack or even Wally Wood won't solve anything in the long term, but there it is.
I still can't agree with you on the Liefeld thing - he's nowhere near the creator that Kirby was. To date I can't think of one Liefeld project that has become a major motion picture - Deadpool popping up in the Wolverine flick aside.
James Howell - John Byrne's website sounds like a fine place to gather evidence. In response I submit to you two documents, both first-hand accounts and both by one of the principals: Mister Miracle #6 and Jack's interview with Gary Groth.
shading the truth, to be as kind as I can, in his direction, I'm going to state what I consider to be the truth re: Kirby's creative role in things.
I have stated that I am a huge fan of your site and I have followed it for some time. I am not sure if this is the place, but I would like to ask you a few questions if I may. I am a huge fan of Norm Breyfogle's work. He is my second favorite Batman artist. Right behind Jim Aparo. I always enjoyed the way he made Batman's cape as if it were alive. His version of Gotham city was a dirty cesspool. As it should be. I know you are friends with him. Under any circumstances do you ever see him becoming the regular artist on a core Batman title again? I am not talking about Batman Beyond. Of course that is a start. Could you ever see him working on Prime again? Do you think we will even see Prime published again? Could you ever see the rights to Prime end up in Breyfogle's hands? He is an awesome character. I would love for you to write about the early days of the Ultraverse and even a nice piece about what happened when it was sold to Marvel. There are so many conflicting reports as to why Marvel does not use those characters. I know I have read that the Ultraverse characters were works for hire and Marvel owns them free and clear.I have also read that if Marvel uses those characters they would have to pay the creators 10 percent of the sales. Marvel denies that. Do you know the real story. I think the Ultraverse line were some of the best comics published in the nineties. They had some of the best writers and artists working on their books. What a concept. I also know that Marvel acquired Men in Black when they bought Malibu. Do they still own the rights to that franchise, or have they somehow reverted to Lowell Cunningham? I did not see the latest movie and I have tried to get some information concerning ownership.
Stan ultimately gave Ditko co-plotting credit at Ditko's insistence, and called his stories done with Kirby a "Lee/Kirby" production. I doubt that he would ever have done this had the artists not complained about his lying on the credits, and insisted on finally being given some kind of credit. How many stories prior to this meek, reluctant crediting of Ditko and Kirby did Stan do dialogue only with Ditko and Kirby doing most of the creative work until Stan finally did start crediting them as being more than just an "artist" for those stories?
I don't know, but that doesn't mean Stan is entitled to any benefit of the doubt. He isn't going to ever get it from me, the well has been poisoned for me, permanently. I don't intend to apologize to anyone for this view, as I think it is the correct one.
You can state your own views, that's fine. But for anyone, even if it's John Byrne, now to complain that Kirby is getting too much credit, strikes me as being idiotic. Stan puts forward his version of events for fifty years now, and still continues to this day, and it's Kirby getting too much credit? If Byrne says or thinks that, he's and idiot. And so is anyone else who thinks that.
'Nuff said?
I'd not consider Byrne to be an expert on Kirby and Lee - he has a lot of second hand info, but, remember, his views are his - he once wrote that Siegel and Shuster deserved nothing from DC as they sold Superman and that as that. Mind you Byrne made millions (as he admitted in court) from that very same character. Excellent artist, good writer, but a bit silly at times.
James - as for Norm and Prime. God, I WISH Prime could make a return, but it's not going to happen. Marvel own those characters now and they have no desire to bring them back. They cite a clause in the contracts of the creators that allows them to claim a percentage when the characters appear, and they're reluctant to pay anyone for anything really. Take it up with Joe Quesada. I know that Norm would draw Prime in a heartbeat if asked.
As an aside, I own a lot of Prime art, and I own all of the art to Norm's Metaphysique series, complete with painted covers and a lot of the promotional pieces. It's beautiful to look at.
Jack Kirby didn't have that advantage at the time that Bob Kane did. And when it comes down to it, what else did Bob Kane do? Cool McCool? Endless Batman rip-offs - he was a true one trick pony who never gave his co-creator any form of a credit at all - even Stan gives Jack his due and even Jack praised Stan at times. That's more than what Bob Kane ever did to Bill Finger.
Thanks very much for your comments about my post. I appreciated it. I should have another one up on the subject in a month or so. I have a series going now.
I don't join in here because I would wind up discussing the matter, again, with some of the same,uninformed insulting people who are on other lists who cannot accept the observations of others.
Norm Breyfogle is a giant of an artist, one of the best that's ever graced Batman. Jim Lee's Batman is a over muscled guy, Norm's Batman is sinister, a creature of the night. Lee's Batman wouldn't scare many by appearance, Norm's Batman would terrify the shit out of anyone. And that's how Batman should be - he should be able to make people piss their pants by his shadow alone, not by popping up and belting them. That should be the last resort.
There's lot of Breyfogle on this blog for a very good reason, and I'm overjoyed that he's back at DC drawing the Bat once more.
The Walking Dead - yep, I'm looking into that, along with the Archie/Ken Penders situation, which is very, very interesting indeed.