Artists’ Alley, Gary Friedrich and Marvel’s Spirit of Vengeance
As previously reported on ComicsAlliance, Ghost Rider co-creator Gary Friedrich was ordered last week to pay Marvel $17,000 in damages and seek no further profit from his association with the character as a result of their legal dispute. Friedrich's offense in Marvel's eyes was that he made convention appearances as the creator of Ghost Rider and sold Ghost Rider merchandise. In other words he did what almost every comic creator does when they sell prints, sketches, art books, etc. often based on their past work, even though they're not legally authorized to do so if that work depicts trademarked characters those artists do not own. These sales are not just a perk of the job; they're an important revenue stream. Many creators can only afford to attend conventions if they shift product at their Artists' Alley tables, and their attendance is not only important to their careers and their income, but also to their publishers' promotional efforts. As such, publishers have typically turned a blind eye towards the personal profits earned from this practice.
Marvel has not established that it will come after artists who sell artwork and products based on their own work for the company, and Marvel's counterclaim was presumably intended to provide leverage to get Friedrich to back off his Ghost Rider ownership lawsuit, but it appears that Marvel may also have launched a broadside against the very foundation of Artists' Alley. I'm not a lawyer; I studied law for two years and it didn't take, but from my reading of the coverage I can discern three possible interpretations of this counter-suit, each of which carries different implications for creators.1. Marvel is the Hero
Anyone with any affection for comics and their creators may instinctively reject this reading. We know how unkindly the industry treated the likes of Jack Kirby, Joe Shuster, Jerry Siegel, Marv Wolfman, Alan Moore and others; the corporation is always the villain, and the little guy trying to make his way in the world is always the hero. It's hard to picture publishers as the good guys. Even the fact that the law found in Marvel's favor fits the narrative of corporation-as-bully, because our cynicism tells us that wealth always triumphs over justice.
The initial lawsuit centered on Friedrich's assertion that ownership of Ghost Rider reverted to him in 2001 because Marvel failed to file a copyright claim in 1971. This suit was resolved in Marvel's favor back in December, and the latest settlement relates to Marvel's counterclaim that Friedrich profited from Marvel's trademarks by selling Ghost Rider merchandise and marketing himself as Ghost Rider's creator. Friedrich intends to appeal.
But was Marvel actually in the right? Was Friedrich a nuisance litigant pushing an unsupportable claim while profiting from Marvel's trademark, and was Marvel's counterclaim a rational defensive strategy? Friedrich is a writer, not an artist, so he was selling merchandise that featured other creators' work without their permission, which means he was not only profiting from Marvel's trademarks but also limiting the ability of artists to sell their products. True, those artists would also have been profiting from the unauthorized use of Marvel's trademarks, but when it comes to turning a blind eye, Marvel might reasonably distinguish between a creator selling his own derivative works and a creator selling someone else's.
If you accept this reading of the Friedrich case then there are no clear implications for other creators so long as those creators only profit from their own work. Under this interpretation it's business as usual for Artists' Alley.
2. Marvel is Marvel
The second reading of events is that Friedrich is in trouble not because he sold unlicensed merchandise but because he poked the bear. All violations of Marvel's trademarks are equally actionable, but Marvel will only go to the expense of pursuing a suit if given cause, and Friedrich gave Marvel cause. His mistake was to sue Marvel when he was engaged in an activity that exposed him to a counterclaim.
It seems likely that Marvel's counterclaim was intended to force Friedrich not to pursue further legal action (and it hasn't worked), rather than to prevent him from making money at conventions. It's arguable whether it was also intended as a warning to others, either to discourage them from suing or as a more general caution; "Look at all these nice prints you have here. Wouldn't it be a shame if something bad happened to all these nice prints you have?"
Even if it was a sensible legal strategy, it was bad PR. It looks petty and vengeful and it has alienated both fans and creators. The condition that Friedrich can no longer market himself as a Ghost Rider creator seems especially cruel.
Friedrich wasn't a threat to Marvel, but he was an irritant. In this interpretation Marvel has made an example of him while also making itself look like a thug. The implication for Artist's Alley is that you're fine so long as Marvel likes you. That's not hugely reassuring, and it's not quite business as usual, because it suggests that Marvel isn't turning a blind eye to unauthorized creator merchandise, but just putting that information in its back pocket in case you ever do anything wrong. Artists might want to take a second look what they are selling on their convention tables, and at their own relationships with Marvel.
3. Marvel is Disney
The final interpretation is the most worrying. Friedrich brought suit against Marvel in 2007. The counter-suit was filed in December 2010. That was after Marvel was acquired by Disney. So could the counter-suit be part of a culture shift at the Mouse of Ideas?
Disney is litigious on a level that Marvel could never afford. The company is so protective of its intellectual property that it famously forced a daycare center to paint over murals that featured Disney characters. Wolverine, Spider-Man and Ghost Rider are now Disney characters. While Marvel has always tolerated the existence of Artists' Alley, it's possible that Disney has less appreciation for the needs of the creative community and the brand-expanding value of unlicensed merchandise. Disney may intend to be more vigorous in shutting down Marvel trademark infringements, if only because of the belief that trademarks must be actively protected in order to be enforceable.
If this is the case, the implications for Artists' Alley are profound, and Gary Friedrich may just be the first because he lined up ahead of everyone else. Disney could move to shut down all unlicensed art at conventions as a means to protect its trademarks.
That is the worst case scenario, and I hope I'm being alarmist, but I'm not the only one who's alarmed. Author and legal expert Jean-Marc Lofficier noted on an industry forum that the Friedrich case saw Marvel use "convention sales of copyrighted Marvel characters" as a "weapon" for the first time. He advised artists to "destroy all sketchbooks for sale with copyrighted materials in it." Former Swamp Thing artist Steve Bissette reproduced Lofficier's remarks on Facebook and Joe the Barbarian's Sean Murphy copied them to his DeviantArt page, along with a declaration that he would no longer do "any sketches or commissions at shows of any character that I don't own." (Lofficier's remarks are well worth reading in full, as he also discusses why he thinks Friedrich's case had merit. CA's own legal advisor is presently looking into the situation as well, and his remarks are forthcoming.)
Former Marvel Comics Editor in Chief Jim Shooter may have put it most dramatically when he wrote yesterday, "I think the business of selling sketches is just about to blow up like Krakatoa."
Artist Phil Noto has offered a calming counterpoint to the burn-the-books response on Twitter, suggesting that privately commissioned sketches and original art sales will not be affected by this case, though he agrees that prints and art books could be problematic. "It basically comes down to this- If you're selling something that a company would sell with their characters that's infringement." Noto also tweeted, "We'll just have to see if there's any widespread enforcement of prints/books this con season. That'll be a good indicator of where it's going."
But no creator wants to be the test case if con season goes badly. It may not ultimately matter how one interprets Marvel's actions in the Friedrich case. Even if cautious creators assume the best, they may yet prepare for the worst, and pull all their Marvel merchandise just in case there is a Disney crackdown.
The effect of such caution could change the character of Artists' Alley forever. Creator participation could decline if creators are less able to break even. Fan engagement could wane if they can no longer get the artists they admire to draw the characters they love. Artists' Alley as a whole could transform from the frontier town of the convention floor to another outpost for big corporations.
Whether you think the blame for all this ultimately lies with Gary Friedrich for suing Marvel, Marvel for pursuing a legal strategy with broader implications, or creators for responding with paranoia, it's going to be impossible to un-ring this bell.
It could have all gone very differently. DC gives movie royalties to the creators of its characters when they find their way to the screen (including Bissette for his role in creating John Constantine, the character that became the basis for a Keanu Reeves film), but Friedrich is struggling to pay his mortgage while Ghost Rider is heading to movie theaters for a second time. Friedrich's conduct may not have placed him above reproach, but I think he was right to think that he deserved more than he ever got.
If you want to make a donation to help Gary Friedrich, you can do so at Steve Niles' website.