Oh, wonderful. Another example of the Rule of Gold.

What's weirder, someone wants to take credit for creating Ghost Rider.

Keith, yes, and weirder is that they've now made two movies . . .

but . . .

. . . it's not really about aesthetics, is it? If Hollywood made two big-budget movies of my character, I would have that on my resume and I would talk about it.

It's like they have asserted rights over certain historical facts.

Whether or not the contract was legal, he knew what he was doing. Of course I sympathize with what he wants, but everyone knows what the deal is with the Marvel characters.

I can't remember who it was who pointed out that the message Marvel preaches in its comics is "With great power comes great responsibility," but every time Marvel itself has a moral choice to make, it's "Hulk smash puny human!"

Jesus. The more I hear about the present condition of the people who were defining the comics I grew up reading, the more I have this sick feeling in my gut. Who ever thought I'd end up feeling lucky because I never amounted to anything?

rm@3:

In total agreement. He deserves compensation and credit for his work. Snark is my defense when dealing with the monolith of corporate lawyers manhandling IP.

rm @ 3:

It's like they have asserted rights over certain historical facts.

They don't care about facts. They're asserting rights over monetary input streams. "Creator" to them means one who can lay claim to property rights.

I'm a fan of owning your own work, but artist Ty Templeton, while generally of that opinion, does have a cogent and funny response about this specific situation:

Edd @9, yeah, I saw Templeton's response. So far I think it's the only thing I've seen from a comics pro that isn't sympathetic to Freidrich.

My girlfriend, who's a baseball fan, says of baseball labor disputes, "The players aren't always right, but the owners are always wrong." I think a similar approach might be helpful in thinking about this matter. I don't know if Freidrich is right, but I'm pretty sure Marvel's wrong.

How’s that “intellectual property” law working out for you, working writers?

The fact that the person who wrote this is the head of a publishing company makes it sound bizarrely like a taunt. Which I certainly *hope* is out of character for Patrick and I'm just misunderstanding it.

Twice, I have had a similar struggle with the Big Marvel/DC contracts, both times they wanted all rights to my story till the heat death of the universe and both times I backed away and sold the story/ gn elsewhere.

It's one thing to write in a Marvel/DC universe. If you want, go in eyes wide open, hand out for the check, good luck to you. But when it is original material (and in the gn case, based on a short story I'd already published years earlier) there is no way, even hungry, I would have taken that deal.

JaneY

Chris @11, just for starters, Patrick isn't the head of a publishing company. He's an editor, and as such is the head of SF and fantasy at Tor.

What he said wasn't a taunt. If you'll go back through the electro-akashic record, you'll find that Patrick has consistently been a passionate defender of real rights for authors. His last line was a piece of snark aimed at authors who defend the big media conglomerates' constant effort to alter and reinterpret the law (they spend a lot of money on that) in order to extend their control of rights in ways that confer zero benefits on the actual creators.

Malcolm, #4: Whether or not the contract was legal, he knew what he was doing.

It's not clear to me that Marvel's work-for-hire agreement says that you can't even identify yourself as the co-creator of something you helped create. More than even the punitive $17,000 in damages being extracted from a working stiff in his late 60s, I think many people find it extraordinary that he's being prohibited from asserting a plain historical fact--that he helped create the character. There's a reason it was this particular detail I chose to highlight, out of the several things Marvel has done to Gary Friedrich.

There are circumstances where it makes sense for an organization to require promises of secrecy from its employees or contractors, forbidding them to identify themselves as the individuals responsible for particular pieces of work. To put it as mildly as possible, it's difficult to imagine a non-fanciful circumstance in which the business of dreaming up comic-book superheroes is one of those circumstances.

This court-mandated gag rule prohibiting Friedrich from identifying himself as the co-creator of Ghost Rider is particularly surreal since Friedrich's connection with the character is a multiply-recorded, well-established fact in the public record. In essence, the court is imposing on Friedrich a unique piece of prior restraint: he may not speak a particular fact about himself which everyone else on the planet may. I don't care what fuck-you legal agreement Friedrich signed when he endorsed his paycheck, that's simply insane.

Chris, #11: Sorry if I sounded like I was taunting working writers. My Making Light failure mode is "gnomic." To expand on what Teresa said, I'm entirely in favor of fair treatment for working writers. I'm also in favor of copyright. I think the concept of "intellectual property", as opposed to copyright, patent, trademark, etc., has done a lot of mischief; in fact, there's considerable evidence that the phrase was designed to do that--to make us believe that the charters granted by copyright & patent are "property" in the same sense as your shirt. Which they are most certainly--historically, morally, and legally--not.

Malcolm @4:

Whether or not the contract was legal, he knew what he was doing. Of course I sympathize with what he wants, but everyone knows what the deal is with the Marvel characters.

You can't say with any certainty that Freidrich knew what he was doing. I don't know what the situation is now, but when I was working in comics in 1994-1996, almost no one had an agent. Most of them didn't know what agents were for, and they sure didn't know their rights. I met honest, straightforward, hard-working comics guys who literally weren't aware that it isn't normal and legal to pay kickbacks in return for being given work.

In book publishing, agents exert a constant pressure on publishers to write contracts and royalty statements in something resembling natural language, spell out what the various provisions mean, and explain how all the parts interact. Without that pressure, contracts and royalty statements would be even murkier than they are. And needless to say, without knowledgeable advocates on their side, or any other mechanism to help explain contracts to them, comics creators don't do a lot of fighting back.

It's not a coincidence that most of the comics creators who I know have agents and who do work for Marvel or DC are writers. They're people of the word. Some of the artists are too, but others? not so much, or at least not in English.

I don't know how much Valiant was like Marvel, but I'm not sure I ever saw a contract for a freelance artist when I was editing there. Contractual agreements were completely separate from the editorial process. I'd talk to a prospective freelancer, and if we came to an agreement, they'd start working. Whatever paperwork was involved was pro forma, an afterthought. For all I know, the freelancers were turning in billable work before they had an agreement on paper.

One other thing to keep in mind is that when Freidrich began writing Ghost Writer, creators got no royalties, and artists couldn't even count on getting their originals back. It's taken some major court battles to establish that comics creators had any rights at all. Meanwhile, the entire landscape of rights and copyrights has undergone several rounds of major changes. Even now, nobody knows what-all that means. Lawsuits are one of the ways we figure it out.

There are a lot of general statements you can make about comics creators and their relationships with publishers and stand a fair chance of being right, but "He knew what he was getting into" is not one of them.

You know what you can say? Whether they win or lose in court, the publishers will go to enormous lengths to keep litigant creators from talking about their cases where their peers can hear about it.

Jane @12, I remember one of those copyright thrashes with DC. A surprising number of authors signed DC's contract without really reading it -- I suspect, because it never occurred to them that DC would ask for such an outrageous set of rights.

Speaking of frogs in hot water, it's rather astonishing how we've gone (in the US) in a century or so from a general attitude in society that business dealings should¹ be fair, honorable, and equitable, to a general agreement that if you end up with the short end of the stick, it must be your fault.

1. Emphasis to show that I understand that even if most people agree to the desirability, we all need to be wary that some people won't play the game that way. And, for that matter, that for some strata of society the rules have always been different.

Siegel and Shuster got a pittance, but nobody prevented them from reminding us that they created the Last Son of Krypton.

If corporations are "persons", may we not therefore expect ethical & honorable behavior from them, and penalize them when they behave like ****heads?

That'll be 50,000 Hail Marys...

Should you feel inclined to throw some bucks Friedrich's way, there's a website where donations are being solicited to meet that $17,000:

http://www.steveniles.com/gary.html

No good, Lizzy L. They'd either put them on a tape loop and hire big-pants lawyers to keep anyone from saying that wasn't good enough, or hire 500 third-world laborers to say 100 each at $0.02/day.

Copyright lasts for life-of-author plus a certain number of years. Consequently, if Marvel were smart, they would know that their copyright would last longer if they credit a particular person as being an author.

If I am ever at a convention that this man is at, I will stand next to him and say, "This is Friedrich, who created Ghost Rider." He may not be legally allowed to say it, but I can.

Ridiculous.

Or, ya know, Freidrich.

Avram @ #10, your girlfriend has a good grasp on baseball labor issues. Sometime you should ask her if Marvin Miller belongs in the baseball Hall of Fame.

Malcolm@#4, Teresa and Patrick,

I am disgusted with the "they knew what the were doing when they signed the contract/lease/mortgage/whatever" argument. This is as far from the truth as Newt Gingrich is. I'd love to know how old Freidrich was when he signed the contract. Just as I'd love to know if all the great old blues singers had their own lawyers present when they signed away the rights to their music forever.

Or, for that matter; how many of us have ever read even a standard EULA completely?

First of all, I'm sure if Freidrich could have afforded a lawyer, he would have had one there. As would all those poor folks who were told unambiguously that they could easily afford the houses they were buying.

Secondly, not all of us assume that we are going to be screwed by the people with whom we're signing an agreement. Maybe we should but, I, for one, refuse to believe that everyone I deal with is out to do me harm. I know that at 67 I probably should but, I refuse to live my life that way.

Malcolm, your argument is far from reality. Most people are not lawyers. And cannot afford to hire one.

The writers in Teresa's and Patrick's care should thank their stars and good sense that they work with people who truly care for their clients' welfare.

The judge's ruling in this case is truly awful law. All we can do is take this as a warning to all young creatives to insure that they understand what they're committing themselves to.
And, you know what, hungry people often do not have the luxury of choice.

Rick York @ 26: Thank you. I started a similar comment several times and didn't have the heart to finish it. In my book, "He knew what he was doing" is one shade away from "She was asking for it".

Erik Nelson @22, it doesn't work that way. Marvel/Disney can't own it as work for hire and also claim that the original author still owns it. It has nothing to do with who the work is credited to.

Anyway, Marvel/Disney don't have to worry about their copyright on the Ghost Rider character; they've got it registered as a trademark, and that lasts as long as they want it to last.

Rick York @26: I'd love to know how old Freidrich was when he signed the contract.

Jeez, dude, the Internet is sitting right in front of you. The first few issues of Ghost Rider were published when Friedrich was 30.

Linkmeister, 25: I don't know why Avram didn't ID me more clearly, but that would be me. In answer to your question, hell yes!

More generally, this post ties into a question I've been mulling over recently: Does it pay to do legitimate business in the US? By which I mean, is it possible to engage in business, without running afoul of the law, and without a competitive advantage based on securing a captive market (via software requirements, unilateral fee impositions, or some such - I hope my drift is clear), and be able to make a reasonable living?

The thought initially struck me about a decade ago when I worked in a chemical trading firm where one of the divisions had gross margins on bulk plastic sales of $5 a metric ton to deal with. Such small margins mean only a very large company, or a heavily subsidized company, can survive. How can smaller businesses compete in such a competitive marketplace?

As a business school graduate, I figured out early on that a perfectly competitive economy is one where no one makes real money. So adjustments have to be made - the question is what kind and in whose interest.

This also ties into the tradeoff between efficiency and stability/resilience, which the PTB really need to realize they've let slip awfully far in one direction. But I suspect the PTB are none too bright, and really think it's all about who dies with the most toys, which scares me to death.

It is, perhaps, worth noting here (as it was at BoingBoing in the comments), that editor Roy Thomas and artist Mike Ploog both dispute Freidrich's claim to sole creatorship (and the name of the character was pre-existing). Also, Freidrich was selling repros of art owned by Marvel that Ploog drew.

Marvel's not in the right here, but it's not cut-and-dried that Freidrich is in the right, either.

It sure would be the right thing to do for Marvel to cut Freidrich and Ploog a piece of the license revenue (and maybe Rascally Roy, too).

Rick York @ 26 -

No point in blaming the judge. All her order did was enforce a settlement agreement.

I'd also note that the agreement doesn't say that Friedrich can't call himself the creator of Ghost Rider, it says that he can't use Ghost Rider to make money. Billing himself as the creator at a paid public appearance may be violation, but he definitely can introduce himself at a party as the creator of Ghost rider. The $17k is damages for copyright and trademark infringement, based on an accounting of sales by Friedrich. Taken *in* *isolation* as a settlement for copyright and trademark infringement it seems reasonable to me.

The text of the court order and settlement agreement is online in this blogpost for those interested:

http://keithhowell.blogspot.com/2012/02/friedrich-v-marvel-ruling-corporate.html

Paul O'Brien and Al Kennedy are Scottish lawyers with a very long history of prominent activity in Internet comics fandom. Paul in particular has been doing sales analysis and some extended commentary for literally decades now. They share a blog at House to Astonish, and do a biweekly podcast. In the episode they put out this weekend, they discuss this case , along with other news including the Watchmen sequels, and some reviews, and their customary concluding humor segment.

This is routinely one of my favorite podcasts, and particularly so when, as twice in this episode, their professional and personal expertise kicks in so directly.

(Punchline: they reach no real conclusions, but suggest some questions to ask I'll be interested in the answers to.)

Bruce @32

That's a good explanation of the way litigation usually works. From my own experience, I wouldn't be so sure of the motives of the lawyers: it took nearly three years before the outfit handling my claim over my car crash actually bothered to tell me anything about the likely range of any payout (the lawyers are paid by the insurance company, and I seem to be the front man for an argument between two corporations over who pays for what).

Interesting point: if Freidrich is a guest at a con, and gets expenses (transport, hotel room, that sort of thing), what happens if the convention describes him, in the program or in a guest biography, as one of the creators of Ghost Rider?

There is some legal hair-splitting possible there, and I wouldn't want to take the chance of having to pay lawyers.

Chris #29:

I wonder how much our massively-tilted-by-money legal and regulatory environment functions to keep competitors to the well-connected big boys out. I mean, large companies are often demonstrably not very efficient in many important areas--just as in government, large companies tend to (as far as I have seen) have areas of extreme competence and efficiency, and also areas where they're frighteningly inefficient and incompetent. But regulations often seem like they work as an effective barrier to entry (you need a certain level of experience and expertise to comply with the regulations, and regulations tend to co-evolve with existing businesses in the industry over time). And as has been demonstrated by the robosigning stuff, some companies in some industries turn out to be able to do frankly illegal, do-this-and-go-to-jail[1] stuff, with minimial consequences. Doing business with such companies is like doing business with a nobleman in some society where the courts mostly defer to noblemen in any conflict with commoners.

Re: elites, I agree. In general, our elites are pretty smart, capable people, but they're selected for managing to climb to the top, not for making good decisions. The quality of their decisions for the society is demonstrably pretty low. Even for their individual companies or parties or agencies, they often make pretty bad
decisions, often don't seem to know much about their business, etc.

[1] If I were fighting a foreclosure in court, and it turned out I had documents that had been forged (for example, if they'd been signed by someone who was dead several years before I claim they signed it), I expect I would be headed for jail. At the very least, I would lose my case very quickly. Oddly, as I understand it, that hasn't happened in the foreclosure cases where this has come up.

Malcolm @ 4; Various Others @ 14, 15, 26, 27 and 12 & 16:

Even assuming the claim that "they knew what they were doing" is accurate, what is the likelihood that any contract signed was done under an umbrella of, "This is what all our creative types sign. Who cares if it's fair? If you don't want to sign it, screw you. You guys are a dime a dozen, and we'll just publish the next guy instead."?

If the choice is signing over more than you want to, or eating next week -- or for even more pressure, feeding your kids next week -- what do you choose? Mot people are willing to get screwed a little.
"Yeah, I guess maybe if I waited, if I gutted it out, I could've gotten an extra couple hundred," doesn't hurt too much, and can be rationalized by the risk capital is taking that your idea sounds good, but doesn't sell, and maybe they eat the couple hundred.
But when you watch someone earning millions and billions on your idea, and you were sort of bullied into it with a, "Here, ten bucks, take it or leave it." contract, that gets people a little more steamed.

And do you really want that level of bare-knuckled capitalism to be the rule? That whoever has the most money or the most power, and can screw over everyone else, and do it legally? This is exactly the sort of laissez-faire business practices popularized by Pullman and the rest of the robber barons that led to unions in the first place.

Color me confused. I thought the Berne Convention granted authors an inalienable right to claim authorship to their work even if they signed away all their economic rights.

The US is signatory to the Berne Convention right? Wikipedia claims it is.

@O.G.N: The Berne convention does technically include a section on "moral rights", which include the right of attribution. However, not all countries that are signatories to the BC actually implement the whole thing; and moral rights are one of the areas that are often skirted or half-arsed.

The other big lacuna is that the BC officially requires that all its signatories implement the Rule of the Shorter Term, something that the US has to date vocally avoided.

Friedrich did not dispute that Marvel owns the print rights to Ghost Rider, and Marvel did not dispute that Friedrich was the guy who thought up Ghost Rider. Friedrich's claim was that the all of the non-print rights reverted to him after 28 years, and he sued Marvel, Disney and a few dozen merchandise companies for royalties. The court ultimately ruled that Marvel was the sole owner of all the rights. Despite the case law I agree that the legend on the back of the Marvel paychecks was a BS contract of adhesion. However that was not the sole evidence. There is also the 1978 contract Friedrich signed that states:

"SUPPLIER [i.e., Friedrich] expressly grants to MARVEL forever all rights of any kind and nature in and to the Work, the rights to use SUPPLIER’s name in connection therewith and agrees that MARVEL is the sole and exclusive copyright proprietor thereof having all rights of ownership therein."

That, I'm afraid, is pretty clear-cut. This summary is based off of the 12/28/2011 decision online at New York District Court website:

http://www.nysd.uscourts.gov/cases/show.php?db=special&id=143

Marvel also counter-sued Friedrich for infringement as he had been selling his own Ghost Rider merchandise. That settlement basically came down to "pay us the outstanding license fees and promise not to do it again". The fuzzy part about the restriction on making money off of Ghost Rider is that the restriction includes "services", and I don't know precisely how that would apply to promotion for paid appearances. I'm pretty sure that a con biography can say he created Ghost Rider, and he definitely can charge to sign licensed merchandise because that is specifically allowed by the agreement.

@Dave Crisp: So the US has only implemented the parts of the BC that serves the interests of the Walt Disney Company? Somehow that seems awfully cynical.

O.G.N. @ 39 -
I'm rather happy with a more limited implementation of moral rights, since broad interpretations lead to things like the architect of a publicly visible building having control over photographs of it. (Do not take high quality pictures of the Atomium or you might get sued.)

Serendipitously, Michael Chabon's short story "Citizen Conn" (in this week's New Yorker) deals with a penniless comic-book legend and the rift between his characters and himself.

PNH#14: There are circumstances where it makes sense for an organization to require promises of secrecy from its employees or contractors, forbidding them to identify themselves as the individuals responsible for particular pieces of work. To put it as mildly as possible, it's difficult to imagine a non-fanciful circumstance in which the business of dreaming up comic-book superheroes is one of those circumstances.

Ok, but I'm having a lot of fun imagining fanciful situations where it might be utterly necessary. Some of them might make a good storyline in a superhero comic...

PNH #14: I think the concept of "intellectual property", as opposed to copyright, patent, trademark, etc., has done a lot of mischief; in fact, there's considerable evidence that the phrase was designed to do that--to make us believe that the charters granted by copyright & patent are "property" in the same sense as your shirt. Which they are most certainly--historically, morally, and legally--not.

Do you happen to remember any source which presents that evidence, from web link to history book? (Serious question, not snarky: I'm curious to go look at it.)

Heckblazer @40: that doesn't have anything to do with moral rights. Belgium doesn't have a freedom of panorama rule, which means that photographs of buildings are legally a derivative work of the building itself, and copyright can be claimed by the architect if the original design is still protected.

Stephen Frug in #43:

I don't have the evidence you seek, but you will be interested to examine the Google Ngrams plot for "intellectual property." Its ascendancy is startlingly recent, having risen in frequency by about a factor of 1000 in the past three decades or so.

In the English corpus of Google Books, "intellectual property" is fairly constant, appearing about three times in a hundred million words, from 1800 to 1970.

In the mid-Eighties it begins to take off dramatically, exceeding three times in a hundred thousand words by 2000.

It may not be a coincidence that 1984 was when Stewart Brand first said at a gathering of hackers:

"On the one hand information wants to be expensive, because it's so valuable. The right information in the right place just changes your life. On the other hand, information wants to be free, because the cost of getting it out is getting lower and lower all the time. So you have these two fighting against each other."

Meanwhile, in the text of books at least, "intellectual property" was beginning its conquest.

Bill Higgins #45: That is interesting, thanks.

Would still love to get links to evidence that the phrase was "designed" to do that. (Again, not doubting the fact, but interested in the details. Designed by whom? When? Into what intellectual/rhetorical status quo? Etc.)

This is appalling if true. Writer signs "for hire" contract in the '90s, creates long-running series, gets fired and replaced by a ghostwriter. And the publisher is no fly-by-night one: it's HarperCollins.

Linkmeister, you're right, that's terrible.

It doesn't look like Harper Collins is actually her employer though. If the "book packager"s writer doesn't do a good enough job, and it's hard to see how it could sound authentic, maybe Harper Collins won't buy any more of them. Maybe HC will give her a contract for a new series. Who knows?

Am I completely wrong here? Is there a lot of this going on? I know there were some rather farcical series that this was done with, or to; I also know that some at least lost their original readers because they didn't like the changes.

There has been a lot of work done by book packagers, with this kind of difficulty. The contract she has to worry about is not the one with HarperCollins, but the one with the packager for whom she wrote these works. The packager takes on various responsibilities and risks, and usually asks for much worse terms from the author than a publisher could get away with. I've seen materials from a packager that were really dreadful; and I've seen some turn out reasonable work. In general, though, adding that middle-man layer is bad for the writer or artist.

Linkmeister at #47:

This situation sounds a lot like something that has been going on for well over a century: the operation of the Stratemeyer Syndicate.

Novels starring Nancy Drew, Tom Swift, and the Hardy Boys were peddled for decades, but the work-for-hire ghostwriters who wrote them never received a further penny. Someone who created and shaped a successful series could instantly be replaced by another anonymous writer.

I am sure there is much more to be learned about book-packagers, but Edward Stratemeyer is one I happen to know about.

Linkmeister #47: Although I didn’t even understand what “for hire” meant back in 1990, when I agreed to write books for them, I found out eventually, to my horror and dismay. It means that even though I have written the entire series, I don’t own anything about The Vampire Diaries.

"Too soon old, too late smart", and unfortunately, handing young writers contracts they don't understand is commonplace. The flip side of this is that the packager (and perhaps the publisher) have permanently alienated a proven and popular writer. We'll see in time whether they've also killed their hit series.

On a human level, the treatment of Freidrich is so obviously appalling that it nearly masks the more subtle issue at play here: the rights of "the character creator" vs. the rights of the "universe creator."

Take, for example, a different fanciful universe, say the world of Matt Groenig and the Simpsons. If a Simpsons staff writer creates a character on the show, say Krusty the Clown (I know this one was probably created by Groenig himself, but just for the sake of argument)... does the writer have the right to market himself as the creator of Krusty, to do independent signings etc., or do Groenig's and the producers's rights supercede his?

It seems when you are working within the context of a universe (be it the Marvel or the Simpsons universe) you are automatically dealing with branding issues on top of your own intellectual property rights.

Which still doesn't excuse Marvel's tyrannical treatment of employees.