Saturday, February 11, 2012

Friedrich v. Marvel Ruling -- Corporate Bullying at Its Most Distasteful

Entertainment

https://www.facebook.com/SupportGaryFriedrich
The last couple of days have seen a bit of a firestorm erupt online among the comics community over the ruling in Gary Friedrich Enterprises v. Marvel Enterprises (Friedrich v. Marvel), which I believe was initially publicized on a blog (http://ohdannyboy.blogspot.com.au/2012/02/gary-friedrich-enterprises-llc-et-al-v.html ). Primarily, the uproar has been over the ruling in which the destitute Gary Friedrich must pay the Marvel (a multi-million,if not billion, now that they are a part of Disney) corporation $17,000. This smacks most everyone who hears about it as bully behavior by Marvel against a human being. There are more than plenty of websites out there covering and analyzing the story, but I have also seen a lot of misunderstanding of exactly what is happening here. So, I am going to attempt to pull it all together in as objective, concise, and clear manner as I can and then I will give my concerns and feelings about it.

It took a bit of searching, but I did find a copy online of the docket of the claim transferred from Illinois and filed in the District Court of the Southern District of New York on Valentine's Day 2008 by Friedrich against Marvel at http://www.scribd.com/doc/76730989/Friedrich-v-Marvel-DOCKET-S-D-N-Y . I also found a copy of the 2011 ruling at http://www.iplawalert.com/uploads/file/Friedrich%20v%20Marvel.pdf that details the claims and counterclaims on record. This lets us see the chronological procession of events. Just for the record, Friedrich's original claim against Marvel includes 7 pages listing defendant after defendant. So, we might want to keep in mind that while the case is consolidated under the banner of Marvel Enterprises, it also lists Hasbro, Columbia Pictures, and a slew of others who fell under his claim and, yes, The Walt Disney Company is one of them listed. I mention this just to make it clear that Friedrich did not go up against “Goliath” unwittingly and that when we speak of “Marvel,” we are not just talking about Marvel Comics (although they are the primary one involved in the factual background that determined the outcome).

After a lot of legal back and forth nonsense for 2 years, on December 15, 2010, Marvel filed a counterclaim against Friedrich. So what were the pertinent claims by Friedrich and Marvel's counterclaims? Essentially, Friedrich claimed copyright ownership over the character of “Ghost Rider” and claimed that as the copyright owner that his rights had been infringed by Marvel and the other defendants for their use of the character in movies, toys, video games, etc. It is an important distinction to be noted that he is not claiming ownership of the character in regards to Marvel's use of the character within the comic books and graphic novels. Friedrich acknowledges Marvel as the owner of the copyright to the character in relation to publishing but asserts that when he signed over his rights to Marvel in 1978 that he believed he was retaining the rights to the character in regards to other media. In a sense, it is similar to someone here in Texas selling a plot of land but retaining the mineral rights on that land just in case they find oil on it. Unfortunately, there was no evidence in the text of the agreement signed that made his understanding explicit and thereby, near impossible to prove.

Marvel's counterclaims against Friedrich are based on their assertion that Friedrich's use of the image and name of “Ghost Rider” in marketing himself and selling merchandise is a violation of Marvel's copyright and trademark ownership. They demanded that he account for and pay them for each violation over the years and that is where the $17,000 comes into play. They also claimed Trademark Infringement, False Description, False Representation, and False Designation of Origin.

I find it interesting as well that there was little to no interest in this story back in December of last year when the ruling on Friedrich's claim was entered. It wasn't until this week when the final ruling was entered on Marvel's counterclaim that the proverbial “shit hit the fan” on this issue. So, let's back up a little bit and first lay out what happened in the ruling back in December. In the legal system, there is a little thing called “Summary Judgment”. When one party or the other requests a “Summary Judgment,” what they are hoping will happen is that the presiding trial judge will review the facts of the case before trial and if the judge determines that there is actually no genuine issue in the facts will rule that the party is entitled to a judgment without ever even going to trial. Basically, the judge is saying that going before a jury and having a trial would be a waste of time and money because there's actually nothing to argue about in the claims.

"Back of Check" Contract from the '70s
In this case, both sides asked for “Summary Judgment” on one issue only: the question of ownership of the character. Remember Friedrich was claiming not just ownership but also multiple instances of infringement that hinged upon a ruling in his favor on the question of ownership. If he failed on that issue then the allegations of infringement fall away because how can his rights be infringed if he does not own the character? Unfortunately for Friedrich, that is what happened back in December. The court cited well-settled jurisprudence that taken on its face means Friedrich has no legal claim to ownership of the character. The judge's ruling was based on 2 facts in the record: (1) back in the early 70s, when Friedrich endorsed his payment checks from Marvel for his work on Ghost Rider, there was a simple contract acknowledging the work as a “work-for-hire” on the check that he accepted when he signed; and (2) as a prerequisite to be allowed to freelance again for Marvel, in 1978, Friedrich was required to sign a specific agreement assigning any rights he may have in the property over to Marvel (the text of the agreement was: “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.”

So for the first phase of this case, in December of 2011, the court ruled in Summary Judgment that Marvel is the copyright owner of Ghost Rider and not Gary Friedrich. This ruling does not say he is not the creator of the character or limit his ability to market himself as the creator of the character. It is very simply, a definitive declaration that a work-for-hire is a work-for-hire and that means Friedrich does not have a personal stake in the copyright and, therefore, is not legally entitled to money from the films, video games, etc. We can disagree on the morality of whether he is due some level of compensation, but in terms of the law it is settled, just as it was similarly settled when Jack Kirby's heirs tried to claim ownership of pretty much the whole of Marvel's stable in the 1960s and when Marv Wolfman attempted to claim ownership of Blade. The work-for-hire system is well established and near impossible to defeat when it's one little guy against the corporate monster.

But there was that little counterclaim by Marvel still out there and they apparently did not want to dismiss their counterclaim after winning the original claim. So the second phase was completed last week and the final ruling on the counterclaim was entered. What has set the internet on fire was related to Marvel's “stipulations” and the injunctions agreed to by Friedrich. First of all, we need to clear up what a “stipulation” is. A “stipulation” is an agreement made between the parties that is intended to simplify or shorten the litigation. In other words, if one side can agree to “stipulate” to a certain set of facts, then that may shorten or even prevent the case from needing to go to trial.

Secondly, we need to see what Marvel actually “won” here on their counterclaim. Let's look again at what Marvel counterclaimed: (1) Copyright infringement over the sale and distribution of goods depicting Ghost Rider; (2) Trademark Infringement; and (3) False Description, False Representation, and False Designation of Origin. (I'm not quite sure what that third counterclaim is because the court never had to address it because of the stipulation.)

What Marvel and Friedrich did here is come to an agreement to avoid going to trial. Presumably, in light of the fact that Friedrich had lost the original claim, he was strongly urged by his attorney to “settle” or it could turn out to be a much worse financial loss. So, the settlement appears to be this – Marvel agreed to drop the claims of Trademark Infringement, False Description, False Representation, and False Designation of Origin if, and only if, Friedrich consented to some very specific demands from Marvel.

Remember, the court did not order Friedrich to do this, he consented to it on his own because Marvel told him that if he did that they would drop the second and third counterclaims against him. What Friedrich agreed to was to no longer refer to himself as the creator of Ghost Rider. He may not sell or distribute any merchandise (other than signed copies of Marvel's own comic books that he has purchased) with Ghost Rider on it. This will be an ongoing burden for him in marketing himself to conventions and such but not being able to overtly mention Ghost Rider. But I notice in the injunction that Marvel is allowing the possibility of him using the character so long as he obtains a license or permission from them. What a corporate mensch, right?



However, Marvel is not letting go of their first counterclaim for “copyright infringement” and that is where the court accepted the amount of $17,000 as damages owed to Marvel by Friedrich, and they are sticking to their guns even in the face of mounting negativity in the fan press over this ruling.

Briefly, here are my thoughts on it. Friedrich, unfortunately, has been forced into an untenable position by the corporate monster known as Disney/Marvel – I'm not talking legal now, but purely in terms of humanity and morality. The freelance field of the time period in which Friedrich originally created the Ghost Rider character was pretty slimy in terms of business practices. Taking these freelancers who are working their asses off for mere scrapings of a living wage with no retirement and no health insurance and no job security and then requiring them to have to sign these ridiculous contracts on the back of their checks before they can receive payment for work they have already completed is just about as low as it gets. In my view, it is analogous to signing a contract because a bruiser is standing there with a stick ready to break your legs if you don't sign. In a moral world those would be retroactively voided across the board. However, the modern legal field is anything but moral. These vile contracts are consistently upheld by the courts as valid. The 1978 contract that Friedrich signed is also, in my mind, an extortive contract in which they dangled the possibility of future work before him if he would sign away any rights he might have (in other words, they realized they were on shaky ground with the back-of-the-check contracts by then). And now, Marvel is doing it again to him. They have put him in a position where he really has no choice, and even now, he ends up owing thousands of dollars to them which they know perfectly well he cannot pay.

In my opinion, Friedrich is like many writers of his generation, and has been taken advantage of by unscrupulous businesses and business practices for the bulk of his career as a writer. He is not the first and he won't be the last, however, the modern crop of writers is much more knowledgeable about contracts and copyrights so perhaps it will continue to lessen in the field. I find nothing dishonorable in what Friedrich did in filing against Marvel in an attempt to gain some rights of ownership in a character that he did indeed create and which Marvel has profited by hundreds of millions of dollars. That he lost was foreordained by a legal system that is all too often led down predictable paths lined by corporate dollars and high-priced attorneys. That Marvel did not just drop their counterclaims in full against Friedrich is pathetically mean-spirited and a clear attempt by Marvel to “send a message” to any and all out there who might try and mount a similar joust with them over the ownership of other characters.

GaryThe long-term effect of this ruling, however, is its effect on the common practice by current and former comic book artists of selling and distributing prints, posters, commissions and other materials with characters who are copyright to Marvel, DC, or other companies. The injunction against Friedrich and the win on Copyright Infringement have set a precedent now of Marvel coming in after the fact and requiring former comic pros to pay them for profits received as a result of product they sold at conventions or created as commissions. I see a future, not so far away, in which artists will have to obtain explicit permission from Marvel or DC each and every time in order to sell, display, or distribute materials with their characters on it. On that day, the comic convention as an organic coupling of fan and creators becomes a thing of the past and all that remains is a publicity circus of corporate control. That's not a legacy to be proud of and Friedrich does not deserve to be ground into the dirt by Marvel for simply deigning to challenge them. It is simply stupefying and debased that he has been forced into the position of having to choose between being sued for who-knows-how-much money and asserting the truth that he created Ghost Rider for Marvel Comics.

If you feel so inclined, you can donate on behalf of Gary Friedrich at http://www.steveniles.com/gary.html

10 comments:

  1. Thank you, Keith. This is a phenomenal, concise distillation of a very murky situation. I won't SPAM your Blog, but I encourage you to link folks to the "Support Gary Friedrich" Facebook page. Your succinct explanation will surely result in readers who would like to express themselves beyond the Comments section, and interact with equally outraged fans. -Benjamin

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    1. I added a link to my picture at the top so that it doesn't just have the Facebook address but also links to it.

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    2. Fantastic. Thank you for everything. -b

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  2. As a sign of good faith, Nic Cage should crack open his wallet and pay the $17,000 to Marvel to help Gary out. Nic can afford it and if his 2nd Ghost Rider movie is a success, then all will work out in the end.

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    1. I kind of agree. Nic CAge is enough of a comic fan and GR fan himself that, it would be a strong show of support and good faith to offer to pay the $17,000 out of his salary. It would garner good publicity and pretty cheaply too.

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  3. Could you confirm if Marvel actually produced that cancelled check signed/endorsed by Friedrich?

    Judges have nullified foreclosures when the mortgage holder could not produce a copy of the signed promissory note. Similarly, if Marvel cannot produce the check endorsed by Friedrich, I don't see why they should retain ownership of GR.

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  4. I sure can't. And I doubt they ever could. To find an endorsed copy of one of those checks would require them to recover it from the archives of whatever bank he presented the checks to...and I don't believe any bank is required to keep those available this many years after. The companies have to basically assert that this was "standard practice" and the court assumes that he must have signed it if he was paid. Kirby lost even though he, if I recall correctly, did actually produce copies showing that he had personally lined out the contract (a universal sign of nonacceptance) before signing his checks.

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  5. Maybe Stan the Man could assist. Isn't his own challenge to Marvel getting him 10% of all things Spider-Man past-present-and-future ?

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  6. I think Stan's suit stems from a different contract, either expressed or implied. As a salaried employee of Marvel, there was no need to have a contract on the backside of the checks like they did for freelancer. I believe (and I haven't gone back onto the web to double-check this) that Stan, in his later years when he was functioning as Marvel's liaison with Hollywood in securing film and tv licenses, entered into some sort of agreement with Marvel that was negotiated uniquely between them and that's what he's using as the basis for his suit. I can't think there's anything analagous to the Friedrich case here.

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  7. In conversation with a friend about this, we started talking about the ramifications of this ruling on Comic pros and their selling of prints, commissions, and other wares at conventions. I mentioned again that the ruling against Friedrich is for infringement of Copyright (which you do not have to defend to keep) and not infringement of Trademark (which you DO have to defend or you lose it; and once lost, a TM can never be regained). So, this is what I said:

    It is very telling to me that Disney/Marvel "settled" with Friedrich by telling him that if he would just agree to the $17,000 for copyright infringement (the first of 3 counterclaims against him) based primarily upon online and print advertising of Friedrich's Con appearances that utilized Ghost Rider images and these cheap prints he used to have made up of the Mike Ploog cover for their first Ghost Rider collaboration. These gave Friedrich, a WRITER, something to actually sign for people at the Cons. Just like, for example, Wizard printed up a stack of 11x14 prints of NEW TEEN TITANS #1 for invited special guest Marv Wolfman to sign for fans at last years Austin Con.

    The key thing here is that Disney/Marvel generously "offered" to drop the other 2 claims in their suit against Friedrich. And one of those claims was for "Trademark Infringement".

    So...just pull back for a minute and think about that. Why would they offer to drop the "Trademark" claim -- which was a stronger claim since it involves the visual imagery of GR and could easily have caused "confusion in the marketplace" in the sense that it probably appeared to many people coming to Friedrich's table that he had the imprimatur of approval from Marvel or he wouldn't have those prints?

    Why indeed?

    Because it's exactly what I mentioned above. Disney/Marvel did not actually want to push it that far with the trademark issue because if, by some fluke, the judge evaluated the whole of the complaint with even a modicum of rationality, she would see that Marvel's been looking the other way on these trademark infringements in Friedrich's (and hundreds and thousands of others) case for years and years. In other words, they ran a serious risk of actually LOSING the trademark to the Ghost Rider if they had gone to trial over the allegation of trademark infringement and the judge had decided that since they had not aggressively pursued it for so long that they effectively gave it up.

    They didn't want to do that. To Disney/Marvel, that $17,000 sounds like the bare minimum of money but enough for them to use it to pressure the destitute Friedrich to accept the settlement and they would "generously" drop the Trademark Infringement claim.

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