By: Heidi MacDonald,
on 11/3/2015
Today’s oral argument in the Siegel case is up on YouTube – and no, this isn’t a rickroll. As noted in my article reporting on the scheduling of today’s panel, the odds did not appear to be in the favor of the Siegel appeal, and the judges’ questions and comments did little to dispel that […]
By: Heidi MacDonald,
on 10/21/2015
Mental illness has been a trope in comics-related properties ranging from Peanuts to Gotham, but do new sensitivities to mental health issues mean that it’s time for this to change? At this year’s San Diego and New York Comic-Cons, I had the privilege of moderating a couple of panels on the portrayal of mental illness […]
By: Heidi MacDonald,
on 10/18/2015
Gunfire at the Ft. Myers charitable event created a real-life running zombie herd, but the organizers’ security safeguards may have helped prevent further harm. Shootings have become a depressing fact of life here in the U.S. — and for those of you who spent a fair amount of time in New York and other large […]
By: Heidi MacDonald,
on 10/10/2015
The latest hearing in the Siegel family lawsuits has been scheduled for Tuesday, November 3 — but if you think this points to an undoing of their losses to this point, don’t get too excited. At this point Marc Toberoff’s attempts to revive the Siegel case seem like the legal world’s version of trying to […]
By: Heidi MacDonald,
on 10/10/2015
Diversity is a recurring theme in panels at this year’s New York Comic-Con, mirroring a trend in fandom nationwide. Race, gender, physical ability, mental health, even geeks as an emerging protected class – amidst the how-to’s and PR announcements, programming about diversity is filling rooms and getting headlines. The power of this theme is something […]
By: Heidi MacDonald,
on 10/9/2015
According to folks texting me from the belly of the beast, NYCC security temporarily blocked entry to and attempted to evacuate Artists Alley as a result of overcrowding. There have been numberous reports of a bottleneck at the entry and restricted-to-no movement in the hallway. This sort of thing typically gives rise to confusion […]
By: Heidi MacDonald,
on 7/21/2015
“Dogs and cats, living together!” – that’s what immediately popped into my mind yesterday when I read Tony Isabella praising DC on Facebook for how it was treating him in regard to Black Lightning.I’ve never seen the original contract between DC and Isabella in regard to Black Lightning so I have nothing to say of substance in regard to the property’s legal status, but as anyone who has followed Tony’s online writing over the years can tell you, Isabella’s statements about DC’s treatment of him and his landmark creation have not exactly been complimentary. That changed, however, yesterday, when Isabella called attention to an Amazon listing of the April 2016 release of Black Lightning, volume 1, the first of what could be a series of collections featuring DC’s first African-American superhero to star in an an eponymous book.
According to Isabella, the rapprochement is the result of outreach by Dan Didio and Geoff Johns, and Isabella is confident that DC will treat him fairly in regard to the payment of royalties. He also raised the possibility of doing more work for DC given sufficient reader demand; the prospect of Isabella working with, say, the creators of the revived Milestone line on a multi-generational crossover is particularly intriguing, given certain thematic resonances with Milestone’s nuanced reflections on creative identity.
To say that Isabella’s announcement is the most unexpected Facebook post of the year is an understatement — it’s one of the most dramatic turnarounds I’ve seen in decades of reading about comics-related disputes, and kudos to all involved for bringing about what I hope will be a truly lasting peace in our time.
By: Heidi MacDonald,
on 7/9/2015
Reflecting on The Beat’s comics journalism ethics panel tonight at San Diego Comic-Con, my thoughts keep going back to the comics community – who we are, where we’re going, and what can keep us all connected however much we grow.
For all the online conversation, the panel went without incident. I ended up reluctantly having to cut off someone who I learned afterward was from the Gamergate perspective after his second or third point, but that was due to the program’s time limits and not any issue with his questions, which were thoughtful and well-received by the panel — the discussion of how Agent Carter makes a woman’s agency its central them was quite illuminating.
Jamie Coville will no doubt post the whole audio, so it’s only a matter of time before you too can hear the panelists’ brilliant insights, interrupted on occasion by my not-so-brilliant calling out their names: Heidi MacDonald, our intrepid leader; Donna Dickens, James Viscardi, Casey Gilley, Joe Illidge, and Brett Schenker.
One of the things that was great about this panel was that the speakers grounded their discussion of ethics in the comics community, and in so doing they expressed the essence of ethics itself. A lot of folks think of ethics primarily in terms of rules or abstract decision making principles, such as avoiding conflicts of interest or protecting the environment. Those can be important, but ethics is fundamentally an extension of ethos – it’s about who we are as individuals and groups.
And as becomes more than evident at conventions, comics people — and gamers, genre film & theater folks, and everyone else in this extended happy network of geeks, nerds, and dorks – are more than just faceless consumers. We’re a community connected by shared interests and values, and we’re all part of the conversation, not just the people who self-identify as journalists or scribble online. We don’t agree on everything, of course, but as the panel emphasized, by following the fundamental ethical principles of understanding and mutual respect, we can talk about our differences in ways that only strengthen our bonds.
However, as the panel also noted, our community of communities is growing to scale — our little niche interests have gone truly global, and even as we engage each other over whether various items and actions truly reflect our communal values, millions of people are coming to the stuff we like without a thorough grounding in our up ’til now shared experience, let alone the unassailable arguments as to why Crisis on Infinite Earths was the greatest crossover of all time. The influx of fans has tremendous potential for extending our community’s influence, but it also brings with it a heightened risk of fragmentation to the point of dissolving, or at best reducing to a network of shared interests that doesn’t go beyond what we see on a screen.
So we talk and write, explain and argue, with neutral just-the-facts articles when they help us gather useful knowledge and principled arguments for what we believe is right. That’s what we’ll all keep doing online and ultimately, that’s what makes comic-cons so important. Just as they gave us a chance to talk about what we talk about when we talk about ethics, they provide a forum of all of us, old and new, to learn about each other and ourselves.
By: Heidi MacDonald,
on 6/11/2015
The Federal Trade Commission has just sent a press release touting its first successful action against a failed Kickstarter campaign.
The FTC’s mission is to protect consumers from false or misleading advertising, and as part of its new FinTech program the agency is developing new strategies for curbing deceptive practices online. Target #1: The Doom That Came to Atlantic City, a crowdfunded vaporware boardgame that netted more than $122,000 for its would-be creator.
Anyone planning to start a Kickstarter campaign might want to consider what the FTC found wrong with this failed campaign and the penalties imposed in the resulting settlement. And if you’re wondering what this case could mean for the future, the FTC is hosting a Twitter chat with its attorneys today (Thursday, June 11) from 2-3pm.
Here’s the scoop from the FTC’s press release:
In its first case involving crowdfunding, the Federal Trade Commission has taken legal action against the deceptive tactics of a project creator who raised money from consumers to produce a board game through a Kickstarter campaign, but instead used most of the funds on himself. The defendant has agreed to a settlement that prohibits him from deceptive representations related to any crowdfunding campaigns in the future and requires him to honor any stated refund policy….
According to the FTC’s complaint, Chevalier represented in his Doom campaign on Kickstarter.com that if he raised $35,000, backers would get certain rewards, such as a copy of the game or specially designed pewter game figurines. He raised more than $122,000 from 1,246 backers, most of whom pledged $75 or more in the hopes of getting the highly prized figurines. He represented in a number of updates that he was making progress on the game. But after 14 months, Chevalier announced that he was canceling the project and refunding his backers’ money.
Despite Chevalier’s promises he did not provide the rewards, nor did he provide refunds to his backers. In fact, according to the FTC’s complaint, Chevalier spent most of the money on unrelated personal expenses such as rent, moving himself to Oregon, personal equipment, and licenses for a different project.
Under the settlement order, Chevalier is prohibited from making misrepresentations about any crowdfunding campaign and from failing to honor stated refund policies. He is also barred from disclosing or otherwise benefiting from customers’ personal information, and failing to dispose of such information properly. The order imposes a $111,793.71 judgment that will be suspended due to Chevalier’s inability to pay. The full amount will become due immediately if he is found to have misrepresented his financial condition.
This case is part of the FTC’s ongoing work to protect consumers taking advantage of new and emerging financial technology, also known as FinTech. As technological advances expand the ways consumers can store, share, and spend money, the FTC is working to keep consumers protected while encouraging innovation for consumers’ benefit.
By: Heidi MacDonald,
on 3/30/2015
Yesterday The Mary Sue published an article noting that for-profit comic-cons might be violating federal labor law by not paying minimum wage to workers improperly classified as volunteers. However, a recent case involving Major League Baseball shows how commercial comic-cons could beat the tag.
The use of free labor by for-profit companies has become a hot issue in recent years. Internships have become a particularly touchy topic – class action lawsuits by former interns have prompted some companies to end their unpaid internship programs, although there are at least a couple high-profile cases on appeal in which companies are challenging the Department of Labor’s standards for determining whether an intern is actually an employee.
Given how costly it can be for a company to fall afoul of federal law on this issue, it is indeed prudent for the companies that run comic conventions to assess whether it is legal for them to use unpaid volunteers. This is especially conventions run by for-profit companies, since charitable nonprofits enjoy a special exemption from minimum wage and overtime requirements in regard to volunteers. The Mary Sue has once again performed a service to the community in calling attention to this important issue.
With that in mind, in making this analysis it’s important to be aware of both the law’s requirements, the specific practices of each company, and the exemptions that are available outside the one given to charities.
First, since conventions produced by ReedPop — NYCC, ECCC, C2E2 — were mentioned in the post, it’s worth noting, as several “volunteers” have stated in the original comments thread and a related Reddit thread, that ReedPop pays volunteers minimum wage as official crew. Calling people volunteers in this context is a great way to foster a sense of community and community — one of things for which Lance Fensterman and company are to be commended is the way that they have fostered this communal sensibility while maximizing return on investment.
But not every for-profit comic-con that brings on volunteers gives these workers compensation – in fact, depending on the convention, you might actually be required to pay a fee for the privilege of helping the company out! Although this may seem on its face like a violation of federal law, there’s a legal loophole that has enabled countless commercial businesses to use volunteers in the standard sense of term.
Over the years the federal Fair Labor Standards Act has accumulated dozens of exemptions for a wide range of ventures, from homemakers making wreaths to C-level executives. For a company that operates a program taking place within a limited period of time during the year, there is one exemption in particular that catches the corporate attorney’s eye: minimum wage and overtime requirements do not apply to “any employee employed by an establishment which is an amusement or recreational establishment…” that operates no more than seven months a year or meets a financial test as to revenue generated at different times of the year. (29 USC 213(a)(3))
There are several cases that show how a commercial comic-con can take advantage of this provision, but the ruling perhaps most on-point was issued just a year ago in the Southern District of New York – coincidentally, the same federal district in which the New York Comic-Con takes place. Chen v. Major League Baseball Properties was brought by a former volunteer for the 2013 All-Star Week FanFest at the Javits Center (!), and the volunteer made arguments similar to those made in the intern lawsuits: volunteers at the event met the criteria for employee status, and thus Major League Baseball should have paid them at least minimum wage.
Major League Baseball — and the court — disagreed. As the court observed, although Major League Baseball operates all year long, Department of Labor regulations distinguish an entire enterprise from an “establishment,” which specifically refers to “a distinct place of business.” The exemption was put in place to accommodate seasonal ventures employing people for discrete periods of time in activities that might offer “non-monetary rewards.” The court concluded Major League Baseball’s FanFest was analogous to the amusement and recreational activities in view when legislators originally enacted the exemption, and the plaintiff’s federal as well as state law claims were summarily dismissed.
The plaintiff has appealed the district court’s ruling – in fact, it was argued in the Second Circuit U.S. Court of Appeals today, March 30 – but as noted above, there are a number of cases in other circuits that have reached similar conclusions. What’s more, even if the appeal succeeds, the main case being cited in opposition focuses on aspects of one baseball team’s operations that are distinguishable from a comic-con. For instance, while the team in question utilized its stadium for events throughout much of the year, comic-cons typically take place in rented facilities for discrete periods of time.
The analysis gets somewhat trickier for an entity operating multiple conventions. For instance, let’s assume that Wizard World doesn’t pay its volunteers — there’s nothing about compensation in the volunteer information packet, at least; Wizard World volunteers don’t even get munchies or parking reimbursements. The fact that Wizard World operates year-round could be grounds for arguing that the seasonal establishment exemption doesn’t apply, but there are also clever counter-arguments and organizational strategies that could persuade a court to disagree. Others have tried and succeeded with even more daunting facts – which, on a related front, is why the NCAA doesn’t have to pay taxes on ads sold for March Madness.
The seasonal exemption has long been a lifeline for companies offering an opportunity to volunteer for ventures that operate on a limited-term basis, such as amusement parks, outdoor swimming pools, Oprah’s Life You Want Tour, and New York Fashion Week. If you are an unpaid commercial comic-con volunteer who believes a lawsuit for back wages would be a clear home run, expect Major League Baseball Properties and cases like it to be deployed to strike you out.
By: Heidi MacDonald,
on 12/22/2014
On Friday New York City Mayor Bill deBlasio met with protestors to discuss their demands for police reform after the shocking death of Eric Garner and the controversial grand jury decision that followed. The name of the activists’ organization will sound familiar to any comics fan: Justice League NYC.
That this prominent group of social justice warriors would share a name with DC Entertainment’s leading super-team is no coincidence. Just check out the group’s logo, which features two African-American superheroes flying out of New York City through a graffiti-style logo. Dig even deeper into contemporary activism’s history and we see even more connections: Ferguson protestors formed their own Justice League over the summer, a leading progressive journalist writes at JusticeLeagueTaskForce.wordpress.com, and as pretty much everyone here knows, the Occupy movement made the V for Vendetta Guy Fawkes’ mask a global icon.
The role of comics in recent protests will no doubt be the subject of any number of academic papers, most of which will bear a punny coloned title like “DC Nation: From Social Relevance Comics to Social Change.” Yet before folks explore what all this means at greater length, I want to offer a quick note on how this phenomenon ties into comics’ uneasy relationship with the law.
Before Photoshop and Final Cut made it possible for anyone to transcend their innate limitations, comics offered a cheap and easy way for people to give a visible form to their wildest thoughts. They became pop culture’s analogue to law as the magic mirror of society — photos may have showed us how the other half lives, but in comics we could create the world of tomorrow, free from the strictures of budget, politics, injury, death, and the real world’s ineffective legal system. What’s more, comics also did away with the shadows and fog that even today make inquiries such as the Serial podcast so frustrating — in the comics world we know who is good, who is evil, and who will win; the big question is how good will triumph.
That sensibility is in comics’ DNA, to both good and ill effect. An unreflective transfer of the comics’ approach to seemingly intractable problems would at its most extreme result in moral nihilism, as violence becomes the standard means of removing any obstacle to achieving what is right. At the same time, the comics’ metaphorical blend of constructive critique and unbounded possibility helps explain why the social relevance comics of the 1970s weren’t as much of a break from the past as some might think. We can draw a straight line back from the O’Neil & Adams Green Lantern/Green Arrow through to the Justice League, Shock SuspenStories, Captain America and Wonder Woman — and the same is true moving forward in time to today. Comics have always had the power to show us who we are and what we can be, and they are at their best when they resemble the magic mirror as ideally envisioned by Oliver Wendell Holmes – reflecting not just our own lives, but the lives of all people who have been.
By: Heidi MacDonald,
on 11/19/2014
A graphic novel has become Exhibit A in the latest Obamacare controversy.
Clear, simple, understandable, useful – those are just a few of the words that recurred in reviews of Health Care Reform: What It Is, Why It’s Necessary, How It Works, a 2012 graphic novel by Xeric-winner Nathan Schreiber and MIT’s Jonathan Gruber.
The irony of these descriptions is no doubt evident to anyone who has been following political news over the past weeks — years after Gruber won praise for his adeptness in making the proposed health law easy to grasp, Gruber has become the center of a political storm due to his recent off-the-cuff claim that the language of Affordable Care Act was deliberately misleading and designed to take advantage of Americans’ “stupidity.”
The dust-up has given new life to the Gruber and Schreiber graphic novel, which thanks to the vagaries of Amazon pricing algorithms appears to become an expensive collectible in hardcover. Conservative sites are finding the book funny in unintended ways, although no one has yet to explain the replacement of its originally announced artist, Dean Motter. It’s natural to assume that there may have been issues of scheduling or style, but perhaps there just wasn’t a place for health care in Terminal City.
By: Heidi MacDonald,
on 10/12/2014
Signs aren’t the only thing greeting attendees at the entrance to New York Comicon. Amidst the registration booths and all too quickly emptied bins for lanyards ReedPOP has its own boutique, featuring the geek-chic fashion of Ashley Eckstein’s Her Universe line.
Her Universe has become a significant presence at both the San Diego and New York conventions, which in turn reflects as place as a market leader in pop-culture inspired fashion. I had the pleasure of speaking at length with Ashley back at SDCC after her successful geek couture fashion show, and as an attorney I have to say that she is a role model for anyone who wants to incorporate copyrighted and trademarked material in their line. In a world where “it’s better to ask forgiveness than permission” has led any number of creators astray, she has from the outset been conscientious (and ambitious!) in licensing characters for Her Universe clothes.
But that’s not the only way in which Her Universe reflects the better angels of geek community’s nature. Besides integrating the participatory spirit of comics-related media discussed in my last post, Ashley has also been a prominent advocate of geek fashion’s capacity to empower those who wear it, both through her clothes and her anti-bullying activism. Create, speak, show others who you are with fear – where the less imaginative may just see licensed properties, her community sees freedom woven into her designs.
Which brings us to the future of geek couture and its role in the community’s future. Walk around San Diego and New York Comic-Cons and you’ll see expressive fashion everywhere, from handcrafted TARDIS earrings and comic-related t-shirts carried in the ubiquitous TARDIS bag to sophisticated cosplay and brands such as Her Universe itself. As the Her Universe show embodied back at San Diego, the key to the future is to go beyond prints and other reproductions of licensed material to transformative geek-inspired design – in fact, for a useful indication of where things are going, watch the development of the co-branded Marvel line announced last July.
As I discuss in my Fashion Ethics, Sustainability and Development class for the Fashion Law Institute, when we wear clothes we wear ourselves – our values, our aspirations, our communities.* It should, then, come as no surprise that when we look at geek couture, we see the future.
*Check out Professor Susan Scafidi’s “Fashion as Information Technology” for more on this.
By: Heidi MacDonald,
on 7/29/2014
Comic-Con hit TMZ after America’s Next Top Model winner and media personality Adrianne Curry, dressed as Catwoman, chased down and whip-punched a man who thrust his hands down the tights of another model dressed as Tigra. As horrible as Sunday’s attack was, could this incident help us deal with such harassment more effectively?
Curry’s superheroic response to the sexual attack on her friend Alicia Marie underscores the importance of taking sexual harassment at comic conventions seriously. Comic conventions have experienced exponential growth in recent years, filling not only convention venues but downtown city streets into volatile vectors for sexually inappropriate behavior. And contrary to the stereotype-ridden TMZ video, dorky fanboys are not necessarily the only culprits – downtown San Diego has become a five-day Festival, with the Red Hour striking anew each time you walk out the Convention Center doors.
How to deal with the problem of harassment within and without Comic-Con was attracting the attention of multiple media outlets even before the attack on Alicia Marie — in fact, after I scheduled this post for publication on The Beat, even Perez Hilton found the Adrianne Curry incident to be a source of moral outrage. Over the next couple posts I want to add a legal perspective, since this happens to be an area in which I have clocked a few villains of my own, albeit with words instead of a whip.
Before we do, however, I want to address a thought that may have popped into the minds of some readers, namely, the notion that women such as Currie and Alicia Marie are themselves somehow asking for it. I actually witnessed a vivid expression of this mindset when a cosplaying woman outside the Con tried to fend off a guy’s come-on by handing him a business card and promoting her own work. The guy responded by contending that there was no other way for a man to take the way she dressed than as a sign that she was looking to get laid.
This exchange stood in stark contrast to the professional discussion I’d just had with a longtime of the annual Comic-Con Masquerade, the amazing Broadway actress and theme-park entertainment designer Diane Duncan. Last Friday when we were walking through the convention chatting about cosplay she stopped to point out what she thought was a standout example of excellent craft, a woman dressed as Poison Ivy whose costume exhibited a number of characteristics that would have done well for her had she worn it for the Masquerade competition instead. The costume had a sensual vibe, yes, but that was an extension of the workmanship — whether the cosplayer’s aim in such artful attention to detail was self-expression, marketing a product, promoting her own business or a combination of all three, baiting men for sex was not the point.
As it turns out, the cosplayer was none other than Adrianne Curry, and as I read up on her and other models who cosplay I found myself in rather familiar territory. In advising on ethics and other legal matters in the fashion industry, it’s all too common to run across men who view what women wear as a sign of sexual availability, as opposed to a form of stylized expression that for many women in modeling, marketing, retail and design is an integral part of their professional identity.
The intrinsic connection between cosplay and fashion got me thinking about another connection they share: namely, unfortunate loopholes in current sexual harassment law. Although we often use the phrase “sexual harassment” when speaking of unwanted advances to cosplayers and fashion models alike, from a legal perspective the term typically refers to sexually inappropriate behavior in certain employment contexts. For example, because models are typically independent contractors, not employees, they are often not protected by sexual harassment laws, and a similar principle applies to comic convention cosplayers who are not there in the course of employment — regardless of how egregiously inappropriate the behavior may be, it technically is not a violation of sexual harassment law, nor would it fall under the purview of a typical harassment policy.
Within the fashion industry, this lacuna is being addressed primarily in two ways: through legal reform and private action. New York, for example, recently enacted a law that extends the protections in child labor laws to underage models, and efforts are ongoing to give volunteers and independent contractors new legal protections when sexually harassed. At the same time, the campaign against harassment within the industry is giving rise to new standards and practices that go beyond the limits of sexual harassment law while taking advantage of more general protections that other laws already provide.
We’re seeing a similar strategy evolve among cosplayers in regard to private action, most prominently in the work of Geeks for Consent, whose signs could be found throughout the convention center this year. I was glad to meet the group’s intrepid director, Rochelle Keyhan, briefly during Comic-Con, and have considerable regard for its efforts to call attention to this important issue. However, it’s also clear that a sharp divide persists between those calling for a more rigorous sexual harassment policy and Comic-Con itself, which has taken the position that a sufficient policy already exists. Awareness, as they say, has been raised, but the ideal provisions of a convention harassment policy remain a matter of dispute.
In my next post, we’ll take a deeper look at the Geeks for Consent campaign, the Adrianne Curry incident and existing law to see whether we can devise a new policy that will address the concerns of all sides in the ongoing debate. Meanwhile, if you have any opinions or experiences pertinent to this important discussion, please feel to leave them in the comments thread or shoot me an email at [email protected].
By: Heidi MacDonald,
on 6/18/2014
Clickhole, the Onion’s answer to Buzzfeed and Clickhole, has posted an audacious NSFW video parody, “If You Grew Up With ‘Calvin and Hobbes,’ You Need to Watch This Now.” Spoilers below for those of you who aren’t already in custody haven’t seen it yet:
Clickhole’s video of Calvin and Hobbes having sex pretty much nukes anything an art critic has ever described as transgressive, but in so doing it also raises a serious legal concern. As you may recall, under 18 U.S. Code Sec. 1466A, U.S. law banning child pornography is not limited to visual depictions of real children. This has already led to prosecutions for possession of comics or cartoons – in fact, animated child sex is reportedly being used as, well, clickbait by law enforcement.
Could watching the Clickhole Calvin and Hobbes video get you sent to jail?
Let’s go exploring!
One key aspect of current U.S. law — setting aside other countries that may have more expansive prohibitions – is that it reflects an adaptive response to the Supreme Court’s conclusion that earlier versions were too broad in ways that violated the First Amendment. As a result Section 1466A only bans non-realistic visual depictions such as the Calvin and Hobbes video if they are obscene or lack serious artistic, literary, political or scientific value.
Here, in brief, is why Congress went with that language. In a series of decisions several decades ago, the Supreme Court came up with a standard for obscenity that, it believes, passes constitutional muster. The standard is known as the Miller test for determining obscenity, and it has three key components: the material appeals to prurient interest, is patently offensive and lacks serious literary, artistic, political or scientific value. By echoing this language, Congress hoped – and so far has mostly succeeded – in establishing a standard for visual depictions of minors in drawings, cartoons, sculptures or paintings that would survive a constitutional challenge.
1466A(a)(2) and (b)(2) ban, among other things, graphic images of a minor engaging in actual or simulated bestiality that lack serious artistic, literary, political or scientific value. Before we get to the question of value, it’s worth noting that the statute goes on to define “graphic” to refer to images in which “a viewer can observe any part of the genitals or pubic area of any depicted person or animal.” In essence, these sections take a shortcut past the prurient and patently offensive elements of the obscenity test, which are determined by community standards, by providing an absolute bright-line standard.
Watch the Clickhole Calvin and Hobbes video carefully and you’ll see that it arguably does not portray the genitals or pubic area of either character – the very sort of thing that a strategic company lawyer might tell a company producing such a video to do if it was determined to post it. That’s not a slam-dunk conclusion, though. Calvin is drawn in a way that resembles the iconic “Love Is …” one-panel cartoon, the product of a time before contemporary anti-child-porn laws as well as a strip that does not depict minors in sexual situations, at least in authorized versions.
Section 1466A(a)(1) and (b)(1) are somewhat more expansive. These provisions prohibit an obscene depiction of sexually explicit conduct, which extends to simulated bestiality and other sexual activity whether or not the genitals or pubic area appear.
What makes determining whether material is obscene particularly hard to determine is that the test looks to community standards – technically in regard to determining whether material appeals to the prurient interest or is patently offensive, but the community sensibility also tends to come into play in assessing whether a reasonable person would find that the material lacks socially redeeming value. This applies not only to a federal statute such as Section 1466A, but any state anti-obscenity or anti-child pornography laws under which the Calvin and Hobbes cartoon could be assessed.
This reliance on community standards has had the effect of balkanizing U.S. obscenity law. What is obscene in one jurisdiction can be perfectly legal in another. Case in point: the Christopher Handley case, which involved a manga collector. The Iowa district judge in that case concluded that 1466(a)(2) and (b)(2) are unconstitutional, but the 11th Circuit U.S. Court of Appeals, which covers Florida, Georgia, and Alabama, expressly disagreed.
In short, if the science of law is, to quote Oliver Wendell Holmes, an art of prediction, the current constitutional definition of obscenity is a Magic 8 Ball.
Which also brings us to 18 USC 2252C, a related provision that prohibits knowingly embedding words or digital images into the source code of a website with the intent (a) to deceive a person into viewing material constituting obscenity or (b) to deceive a minor into viewing material harmful to minors on the Internet. If one is dealing with a judge or jury likely to conclude that the Calvin and Hobbes cartoon is obscene, there is an equally significant risk of being found guilty of using misleading words (the clickbait headline) and images (the still frame before playing) to trick either an adult or a minor into clicking play.
So to answer the question of whether Clickhole’s Calvin and Hobbes Cartoon is illegal, I’d have to say it depends – on the jurisdiction, on the prosecutor, the judge, the jury and the case presented by the defendant’s lawyers. And again, the rest of the world is not bound by our First Amendment jurisprudence and its definition of obscene, so there could be a greater risk elsewhere. There’s a substantial possibility, of course, that nothing will ever happen to Clickhole or any viewers of this video, but it’s not a risk that many lawyers would want their clients to take.
By: Heidi MacDonald,
on 3/22/2013
As expected, the district court has ruled that the 2001 settlement agreement between DC and the Siegels is binding and did indeed transfer the Superman copyright to DC. But what about Superboy?This is how the lawsuit ends, not with a bang but a whimper:
The Court GRANTS DC’s motion for summary judgment on DC’s fourth counterclaim and holds that the October 19, 2001 agreement remains enforceable and operated itself to transfer the Siegels Superman rights to DC. This ends this Court’s involvement in the parties’ dispute ….
The ruling itself addresses Toberoff’s arguments for getting around the agreement and finds them wanting. The court agreed that it needed to make sure that the agreement did indeed transfer the rights, but as we discussed in my previous post the court found the matter to have been resolved by the Ninth Circuit Court of Appeals decision.
If at times it sounds as if the ruling is a bit passive aggressive about having been boxed in by the interpretations of the Ninth Circuit’s ruling, welcome to the real-world politics of the trial & appellate court divide.
The court also concludes that certain arguments were brought years later than they should have, which again is not a surprise. On page 10, we see that DC decided to use the argument that the Siegel side had failed to make a timely affirmative defense pleading, proposed in my previous post, and the judge agreed that it was correct.
The court leaves open the possibility of subsequent state-court breach of contract filings based on disputes over the performance of the settlement, but any such filing would be separate from the Superman copyright litigation now being closed.
After declaring the Superman copyright dispute to be over, the court goes on to ask for briefing on a couple additional issues that one would think have been resolved by the settlement, but the court wants to make absolutely certain before it ends the legal proceedings once and for all. The issues: the Superboy rights and the early Action #1 promotional ads.
One can expect that DC will make try to make quick work of both.
The settlement states that the Siegel family is to “transfer all of its rights in the ‘Superman’ and ‘Spectre’ properties (including ‘Superboy’)’” to DC, and DC will doubtless argue that this means what it says. Moreover, it’s not even clear that the Siegels’ claim to Superboy goes beyond any rights they might have had in it as a derivative work of Superman–in 2007 the district court vacated a previous ruling that gave the Siegels ownership of Superboy as a separate character, indicating that Superboy might instead be merely a derivative work.
As for the promotional ads, the 2008 ruling found that those belong to DC. This is why the judge had to come up with the weird ruling that the ads gave DC only the copyright in a black-and-white strongman–otherwise, the Siegels’ share of Action #1 would have given them far less.
And now, of course, that share is gone.
My condolences to the Siegel and Shuster heirs for what must be a crushing blow. The legal dispute may be all but over, but the work of Jerry, Joanne and Joe on behalf of creators’ rights will always continue to inspire.
By: Heidi MacDonald,
on 3/20/2013
Tonight in SoHo, a panel of comics all-stars will discuss the Carol Tilley’s Seducing the Innocent, which purports to expose industry bete noire Frederick Wertham as a fraud. What’s more important for us today, however, is understanding why he was right.
Tilley’s article has received a fair bit of play in recent months, and understandably so. Besides bringing to light new details from the recently opened Wertham archives, the article also affirms the fundamental righteousness of the comics community and other free-speech progressives continuing to oppose calls to censor pop culture. As Jeet Heer and others have noted, Wertham is the community’s own super villain, a totem of the arrogant self-deception threatening all that is good.
Yet the misbegotten pursuit of virtue can go both ways. While we tug at a few stray details in our effort to prove the man whose research helped end segregation was nothing but a lying racist prig, we tend to overlook how Wertham’s intuitive grasp of comics, society and law was actually more insightful than our own. To recognize this is not to concede that his programmatic agenda in regard to comics was correct–in fact, it can help us understand how our community can respond more effectively to similar challenges today.
Was Wertham a fraud?
Given the meme now circulating as to Wertham’s campaign of deliberate deceit, it’s worth pausing for a moment to note a couple caveats about the charges themselves. First, as Tilley notes, her charges against Wertham aren’t actually new, at least in their broad strokes–there were critics of Wertham’s evidence and techniques back when his influence was at its peak.
Which in itself should not be a surprise. There’s a fine tradition in academia and the sciences of criticizing the methodology of the previous generation, and Wertham, a German immigrant pushing 60 at height of the anti-comics furor, exhibited an approach to information gathering and interpretation that was cutting-edge in the 1920s but seen as woefully inadequate by then modern standards.
Plus ca change and all that, of course–today’s empirical scholarship is itself a reaction against the alleged inadequacies of analytical patterns from a couple-three decades ago, which in turn criticized the approach then current among many of those who were attacking Wertham. While such critiques can have their merits, they can also descend into pettiness and character assassination in ways that reflect agendas outside of the pursuit of more accurate research, as exemplified by critics’ glib dismissal of Wertham as “imperious,” priggish and guilty of such horrendous sins as citing examples from comics that were five years old.
In fact, one could even turn the same critique against Tilley’s article. Instead of aggregating all of Wertham’s factual claims and calculating how many of them had a credible basis, the article slags the man’s entire reputation for veracity on the basis of a few anecdotes. Moreover, these anecdotes themselves arguably don’t fairly represent what Wertham claimed. For example, Wertham acknowledged that he was drawing the work of other colleagues and junior researchers, so the fact that a couple of his stories came from cases he didn’t handle personally is no more the sign of a clueless fraud than popular books by psychiatrists today that include anecdotes from a clinic or colleagues.
Yet there’s a danger in this sort of devil-in-the-details bloodsport, as illustrated by the rejection of one of Wertham’s contemporaries whose work was similarly rejected due to its alleged lack of research rigor and fudging of details. Today we celebrate Marshall McLuhan as the prophet of the electronic age, but at the time academics savaged McLuhan’s work as that of a fraudulent hack. Whatever the flaws in his approach to gathering and presenting data–and yes, they were many–McLuhan’s capacity for pattern recognition was nonpareil.
Understanding Wertham
The example of McLuhan is particularly relevant to the Wertham case, inasmuch as Wertham, like McLuhan, was engaged in making an inventory of the effects of comics as a medium.
Consider the accusation that Wertham skewed his research by focusing on comics-to-crime correlations while hiding other factors. In fact, in Seduction and elsewhere Wertham was forthright in asserting that he wasn’t making a comics-to-crime direct correlation. His argument was actually more subtle. As Wertham repeatedly explained, he was making a broader point about how even small influences within a social environment can have disproportionate effects.
Although we don’t tend to use the same language, Wertham’s argument’s are more familiar and accepted than we admit. Wertham’s understanding of comics as a medium that shapes our perception, identity and actions is McLuhan before he became McLuhan, albeit with one important exception that we’ll discuss later. Nowhere is this more evident in Wertham’s assertion that comics were making the younger generation illiterate, an assessment that McLuhan and his disciple Walter Ong would soon systematize in their landmark discussions of the shift away from a linear textual culture.
Wertham’s disavowal of direct correlation in favor of indirect systemic effects reflects the emergence of dynamics systems theory, which at the time was continuing the development that had begun in the early 19th century and the birth of modern social science. In this regard, Wertham’s metaphor of social health anticipated our current analytical vocabulary in interesting ways. Take, for instance, his description of comics as a “bacillus” that had spread throughout our social environment. Today we would call this going viral.
Where Wertham differed from a media or systems theorist was his preoccupation with social order and legal responsibility. Bart Beaty has already done a stellar job of describing Wertham’s place in the shift from reform-minded progressive research to the more (ironically) Germanic scholarship of the contemporary academy, but rather than focusing on how Wertham was superseded it’s worth focusing on how he was trying to advance our understanding beyond the dominant frameworks of the early twentieth century.
Wertham’s emphasis on health metaphors had a different resonance in the 1940s and 1950s than they have today. They marked a subtle shift away from the genetically based eugenics that had dominated Western progressive thought in the decades leading up to World War II and even a few years afterward. Wertham’s argument, expressed not just in his comics work but his research in support of desegregation, was that non-whites and the poor were not inherently defective. Segregation, prejudice, mass incarceration–the mainstream’s response to poverty, crime and difference was not only counterproductive, it failed to respect others’ core humanity as well as the corruption wrought by the mainstream environment itself.
While certain particulars can be seen as outmoded, the core insight continues to be relevant today, from urban strategy based on the broken windows theory to the use of architecture, zoning and social design to enhance community life. Wertham’s approach is also consistent with the current struggle within legal theory with such issues as America’s incarceration culture to the culpability of human agency in light of the subconscious shaping influences of our social environment and cognitive processes.
Comics as change
This brings us to Wertham’s specific allegations about comics. Once again, if Wertham’s a fraud, he’s a damn clever one. While we might disagree with his critique of some of these effects (most notably his views of human sexuality, which at the time were the clinical norm), his assessment of values and themes evident in comics was for the most part correct.
Comics fostering a sense of unbounded imaginative transformation? Sure, for Wertham it’s sinister, but if the core description is bunk we might have to rethink our affection for Calvin and Hobbes.
The gay subtext in comics? Today you can get tenure writing about how Warhol aptly distilled it his 1962 painting Superman – Puff; art galleries and charities regularly explore the theme; and Michael Chabon won a Pulitzer with a novel that in part turned this subtext into text. A similar point can be made in regard to Wertham’s finding sado-masochism in Wonder Woman (a direct hit, confirmed by what we later learned about Moulton) as well as the sexually exploitive depiction of women more generally.
Superman as a fascist corporate power icon? Yes, it’s easy to call out Wertham for missing Siegel’s and Shuster’s judaism, but his central point regarding icons of corporate control is textbook proto-Foucault (and proto-Frank Miller, proto-Watchmen, proto-Kingdom Come …). We should also acknowledge–following the lead, if I recall correctly, of Craig Yoe–that Wertham called attention to DC’s systemic mistreatment of creators years before the comics community itself.
On a deeper level, what connects all of these assessments–including the assertion that comics can be a factor in antisocial behavior–is Wertham’s conviction that comics as a medium have the power to change who we are. Just as McLuhan saw artists as prophets of a culture where people have fluid identities with multiple roles, Wertham sees comics as a medium that both depicts and transforms.
For an example of the same point made in more positive terms within comics itself, we need look no further than a comic that came out today–Grant Morrison’s Action #18, which expresses his decades-long theme of comics as a medium that creates a new reality, making the impossible possible. Sometimes the effects are destructive, even nihilistic, but properly understood the same transcendent impulse can enable us to become something more.
Countering censorship
Dismissing Wertham as a hack and fraud may make us feel good about ourselves and our community’s past, but outside of that it has little probative or strategic value as a means of countering censorship today. The same goes for the adamant insistence that comics have no relevance to antisocial behavior. In contrast to Morrison’s more honest and accurate metaphors, our model of comics in academics and advocacy tends to be anodyne. Comics have power, yes, but only the power to be comfortable, familiar and safe.
However, comics, like all media, are dangerous. By insisting otherwise, we come across as naive and self-serving, much like ideological researchers whose empirical research always just happens to align with their agenda. We also do a disservice to comics themselves, which are valuable precisely because of their capacity to foster systemic change.
Instead of engaging in a futile campaign to persuade people that the fusion of words and image is not what is, we would do better to concede the point. For instance, Wertham presented an intriguing opening with his uneasy blend of cutting-edge media theory with his most glaring retro mistake: the more traditional, linear depiction of comics as an instruction manual that served as a textbook for crimes. Trying to refute this on its own terms was a self-defeating distraction. There was far more potential in explaining how comics are indeed powerful and disruptive, so much so that they only way to deal with them effectively is not to impose restrictive laws, but to teach kids how the medium works.
By: Heidi MacDonald,
on 3/5/2013
In keeping with the court’s schedule, yesterday Marc Toberoff filed his response to DC’s summary judgment motion in the Superman/Superboy lawsuits. Toberoff has filed these same arguments before, but the accompanying exhibits do include something new: correspondence in which Laura Siegel Larson and the Siegel estates reject a 21 million dollar payment from DC.
The Siegel case has understandably drawn its fair share of sensational headlines, but the legal arguments in yesterday’s filing aren’t as surprising as some believe. The response is not a new Siegel lawsuit, and all of its arguments were outlined in a joint Warner Bros.-Siegel case status filing on February 25.
We’ll take a look at these arguments in a sec–suffice it to say for the moment that Superman in “The Modern Alice in Wonderland” is no longer just a Golden Age story.
What may be more revealing is the correspondence in which DC attorney Daniel Petrocelli states the company is willing to start honoring the 2001 settlement. Toberoff’s response is typically combative, rejecting DC’s initial 21 million dollar payment. One thing that stands out in regard to this is Toberoff’s claim to be acting on behalf of not just Laura Siegel Larson and the Joanne Siegel estate, but also the estate of Michael Siegel, Jerry Siegel’s late son by his first wife.
As for Toberoff’s legal justifications for rejecting the settlement, while a victory is conceivable it’s not anything close to slam dunk. The arguments rely on semantic quibbles, rehashed losing arguments and new points that have arguably been waived.
Before we get to the details, first we’ll step back to take a look at the broader context of yesterday’s filing. On January 10th of this year, the Ninth Circuit Court of Appeals sent the case back down to the district court for further review based on its opinion. DC argued that the Ninth Circuit’s finding the the 2001 term sheet was a valid settlement ends the Superboy and Superman lawsuits, since, as the Ninth Circuit indicated, the settlement precludes a subsequent challenge.
To sort out the complex web of rulings and claims in the Superman/Superboy/Pacific Pictures lawsuits, the district court ordered the both sides to submit a joint status update, along with what each side thought should be done going forward. In addition, the court set a March 4 deadline for Toberoff to respond in detail to the post-appeal summary judgment motion.
As summarized in the February 25 case update and set out in more detail in the March 4 response, Toberoff argues that the settlement actually isn’t binding. He claims that the court didn’t actually rule that there is a binding settlement agreement–instead, it literally said the term sheet “was sufficient” to create a contract, leaving open the possibility that the actions subsequent to the term sheet could undo it. Similarly, the settlement didn’t say that the Siegels had transferred DC the Superman copyright but “would” transfer the copyright, which Toberoff claims to be invalid as a matter of law.
Toberoff goes on to argue that DC’s failure to pay the Siegels by a set date of March 31, 2002 and its attempt to add additional terms in a long-form contract prove that DC rescinded the 2001 settlement. He goes on to argue that DC’s attempt to resume negotiations after the Siegel heirs rejected the settlement constitutes acquiescence in the Siegels’ own rescission. Finally, Toberoff claims the settlement could not have included the Superboy rights, since it was entered into before the Siegels’ exercised the Superboy termination rights.
None of this is surprising or manifestly game-changing. The notion that the Ninth Circuit didn’t find that there is a contract is, to say the least, a bit of a stretch. The Ninth Circuit has already indicated that the negotiations for the long-form contract after the term sheet did not involve substantial changes–indeed, a good chunk of the filing sounds like a rehash of the long-form contract arguments made and lost in the Ninth Circuit appeal.
In addition, contrary to Toberoff’s assertion there is evidence that DC did act on the 2001 settlement by placing the initial amount owed to the Siegels in escrow pending the long form agreement, which the Siegels themselves delayed and rejected. In regard to the Siegels’ rejection of the settlement term sheet, it’s arguable that the resumption of negotiations to forestall a lawsuit did not constitute acquiescence in the Siegels’ rescission but was instead a continuation of the earlier settlement process.
As for Toberoff’s argument that copyright law prohibited the pre-termination sale of the Superboy rights, this is the same argument that lost in the Pacific Pictures Shuster claims, and even the Lassie case commonly cited re the advance sale prohibition notes that post-1977 negotiated transfers analogous to those in the Superman and Superboy lawsuits are valid. Furthermore, without going into the technicalities, it’s arguable that Toberoff claim as that the Superman transfer is invalid because it takes place in the future rather than the past relies on a misapplication of contract law, much as the critique of DC’s negotiation process bypasses law and standard practice pertaining to term sheets.
Toberoff’s latest filings do have one interesting legal fillip, at least for folks interested in civil procedure. Toberoff emphasizes that DC’s rescission of the contract creates a question of fact that warrants the rejection of DC’s summary judgment motion in favor of a trial. However, arguing that DC rescinded the settlement contract could be more appropriately categorized not as a question of fact but an affirmative defense.
The Federal Rules of Civil Procedure requires a party to present its affirmative defenses in its response to the opposing side’s claims. This keeps a party from unduly prolonging a case by responding to each loss with new “what-about-this?” arguments. DC raised the term-sheet-as-enforceable-contract issue way back in its counterclaims to the Siegel heirs’ original complaint–if the Siegel heirs didn’t raise the DC rescission arguments in their reply (which, alas, is not on PACER), one could argue that it’s too late to throw them in now.
Another inside-baseball aspect of the recent filings comes in the February 25 joint statement, in which DC tweaks Toberoff’s assertion that the lengthy Pacific Pictures litigation should “come to a close” by arguing that the lengthy Superboy/Superman litigation should “come to an end.” This is high-level litigation humor–lawyers love a good legal callback.
By: Heidi MacDonald,
on 1/24/2013
Tweet In 2008, the Siegel family won a historic courtroom victory. So why did they risk it all on an appeal? An encounter between Jerry Siegel’s widow, Joanne, and Super Boys author Brad Ricca provides a telling clue.On his must-read blog covering material connected to his forthcoming Siegel and Shuster biography, Ricca tells the following story as [...]
By: Heidi MacDonald,
on 1/20/2013
TweetAmong the many thoughtful questions raised in my discussion with the Superman Homepage earlier this week was whether the Siegel lawsuit prompted changes to Superman’s uniform. This might seem like a small issue, but it reflects serious concerns about freedom and integrity in a corporate context. It wouldn’t be responsible to downplay the importance of corporate attorneys [...]
By: Heidi MacDonald,
on 12/13/2012
by Jeff Trexler
You might hear today that the district court judge has handed Toberoff another stunning defeat this week, “a doozy and an outright win for DC.”
It’s actually a win for Toberoff, at least procedurally.
Here’s what happened.
As was widely reported on The Beat and elsewhere, back on October 17, 2012, Judge Wright granted DC partial summary judgment in its action against Toberoff’s Pacific Pictures. In particular, he ruled that the Shuster estate’s termination was invalid, along with subsequent agreements giving Pacific Pictures a substantial percentage of the Superman rights.
That was a momentous ruling–and, as I discussed, not at all unexpected. Toberoff tried to get the judge to vacate it, but to no avail–unlike 2008, this time he didn’t luck out and get a sympathetic new judge.
One would expect that Toberoff’s next step would be to appeal the ruling to the Ninth Circuit Court of Appeals. However, there’s a slight hitch in the rules of civil procedure. Because the October order was a partial summary judgment–the court ruled on some but not all of the claims at issue–there was no final judgment in the case for Toberoff to appeal.
Accordingly, in November Toberoff asked the judge to issue a final judgment certifying his October order. This way, as Toberoff correctly noted, he could appeal the October rulings in an expeditious fashion.
This is called a Rule 54(b) motion, for the section of the Federal Rules of Civil Procedure that allows a court to “direct entry of a final judgment as to one or more, but fewer than all, claims … if the court expressly determines that there is not just reason for delay.”
On December 11 the judge granted Toberoff’s request and certified the previous partial summary judgment order as final in accordance with Rule 54(b). Shortly thereafter on that same day, December 11, Toberoff filed his appeal with the Ninth Circuit.
For an indication of just how expected this was, note the date on Toberoff’s 12/11 filing–it was prepared on December 10.
On a side note, the judge didn’t grant Toberoff’s request for a stay of proceedings in regard to the other remaining issues–read the order carefully & you’ll find that the judge, in an interesting display of informality, issued his judgment by signing the alternative draft order prepared by DC’s outside counsel, which left out the grant of a stay.
Of course, more generally the ongoing Siegel and Shuster cases do continue to offer some interesting inside-baseball material for discussion, and if I can break away from other matters before another ruling comes down I’ll offer a few thoughts here at The Beat.
By: Heidi MacDonald,
on 11/30/2012
By Jeff Trexler
Today Bleeding Cool noted Section 203 of the Copyright Act of 1976, which provides that in 2013 authors may terminate a copyright transfer or license for work created on or after January 1, 1978. [link: ]
In his post, Rich Johnston goes on to wonder whether Alan Moore could eventually terminate the Watchmen transfer from 1985. Commenters argue that this is absurd, but depending on the contract Moore could actually re-claim his share of the property.
Like the Siegel heirs, creators of post-1977 properties have a legal basis for taking back the copyrights in their original properties. As with the rights of earlier creators, Section 203 termination rights do not apply to works for hire.
Without a copy of Moore’s Watchmen contract it’s not possible to assess the situation with absolute certainty, but there are indications that the contract might not classify Watchmen as work-for-hire. The biggest tell–the alleged provision that the rights will revert to Moore & artist Dave Gibbons after Watchmen goes out of print.
A finding that Moore did indeed transfer the Watchmen copyright to DC in 1985 would appear to give him a clear right to take it back as of 2020, but there are a few additional things we need to consider.
First, if the 1985 contract did indeed treat Moore and Gibbons as co-creators, Moore would likely not be able to re-claim all of the copyright for himself. Just as Siegel and Shuster each had 50% of the original Superman copyright, Moore and Gibbons could be co-owners of Watchmen.
In short, Moore could not on his own keep Watchmen out of public circulation. As co-owner of a joint work, Gibbons would also have a legal right to sell or license the property without having to get Moore’s permission, provided that he accounts for Moore’s share of the profits.
Next, it should be noted that the contract could also give DC an ongoing share of the property. Let’s suppose for the sake of argument that the property was established to be a derivative work of the Charlton characters owned by DC. Moore and Gibbons would own their original material, but DC would also retain ownership of the portion derived from the Charlton characters.
Finally, we need to remember that Section 203 places significant constraints on a co-owner’s termination rights. For example, it can be argued that if the transfer or license was made by two or more authors, the termination may be made only with the agreement of a majority of the co-owners.
In other words, if Moore and Gibbons are equal co-owners and, say, DC makes Gibbons an offer he can’t refuse, Moore arguably would not be able to terminate the transfer by himself. Still, there is also an incentive for Gibbons to agree to pursue termination–he could maintain public goodwill and any relationship with Moore without losing his right to enter into a side-deal with DC or another company.
Of course, all of this would be moot were Moore and Gibbons to miss their window for filing their termination claim. Inasmuch as there’s a possibility they could have had a right to file such a claim as early as 2010, one would expect that their respective attorneys have at least explored their options.
For more on Section 203–especially if you’re someone who created a comics-related property after 1977–the Author’s Guild has a useful guide.
By: Heidi MacDonald,
on 8/20/2012
Ticketfails have become as much a part of fandom as slashfic and cosplay. While PR flubs and angry complaints get a fair bit of attention, the crash of ticket sales for last week’s promotion of a Doctor Who premiere in New York also illustrates the potential for legal problems.
A few thoughts on the legal dimension of online event ticketing — and why it matters — after the jump.The past few years have given rise to several interesting examples of how online event registration has made ticketing both more simple and complex. The iconic example of ticketing problems in the pop-culture world is probably that of Comic-Con International, where enduring a server crash became an annual ritual as the charity grew into the Woodstock of the entertainment world.
Like Comic-Con, BBC America is a charitable enterprise adapting to pop culture fandom’s transition from the cultural margins to the mainstream. (BBCA is part of a network of ventures operated for the benefit of the public-purpose BBC Trust.) The good Doctor’s spike in popularity since the first New York screening two years ago made tickets inevitable, not just to avoid turning away fans at the end of a long line but to forestall liability from an accident, health problem or other incident camping out by a busy city thoroughfare.
In its basic structure BBCA’s event management was relatively typical. The company scheduled the upcoming August 25 premier at a large theater, the Ziegfeld, and it outsourced the distribution to MovieTickets.com. handling the BBCA’s marketing team also took the opportunity to leverage public interest in its most popular program by directing people to follow its Twitter feed in order to be first to get the link to buy tickets.
This is where things got interesting. The price for each tickets was just eleven cents—a penny for each of the Doctor’s eleven incarnations. As a result, amplifying the series’ growing popularity was a lack of any of price discrimination, which would have tempered, say, more expensive pricing for a premiere at the Paley Center. Once the BBCA Twitter feed posted the link, thousands of people hit MovieTickets.com and the site crashed.
If all that had happened was a server crash precipitated by a massive amount of traffic, the basis for legal action would be weak at best. The mere inability to get tickets is not a viable basis for a lawsuit—although stranger things have happened in tort-friendly jurisdictions, a New York court would not likely be your friend. Disappointed fans could try to seek compensation for lost time and event access due to BBCA’s decision to patch around the crash by posting a backdoor link on tumblr instead of Twitter, but the minimal damages and excessive cost of litigation would make for at best a pyrrhic victory. Moreover, BBCA has already taken remedial measures to
By: Heidi MacDonald,
on 8/16/2012
[On Monday, US District judge Otis Wright cancelled a hearing on the case of the Joe Shuster estate's claim for his half of the copyright to Superman. This led many observers to think a decision was near. The Beat's legal expert, Jeff Trexler explains it's just not that simple.]
When a judge agrees to decide a matter on the filings, it often means that the matter is considered to be a clear call. Reading the tea leaves, DC filed for the motion to have the hearing taken off calendar, and the fact that the judge consented could be taken as a sign that things look good for DC. Of course, it could also go the other way. The reason the judge cancelled could also be that he thinks the documentation on this case is so thorough that this hearing would have been a waste of time. Things will likely be a bit clearer, of course, when Judge Wright issues his ruling.
As for the timing, the ruling may be near or may not. It’s an easy guess to think that it is near, not just because of the decision to decide on the briefs but also because it’s August. Late August/early September is when the new law clerks start. If the clerk assigned to the case is leaving, the judge (not to mention the clerk) would most likely prefer to have it off the desk before the clerk most familiar with the matter disappears. Of course, district court clerks can have two year terms, so unlike, say, federal appellate courts, where the norm for all terms is one year, it is conceivable that Judge Wright and his Pacific Pictures clerk might not be facing this time crunch.
What most surprised me about the cancellation of the hearing was not the fact of it – this one does seem to be decidable on the filings, and even if his clerks aren’t leaving it’s August and the beach is calling.
Or at least it was for Marc Toberoff, whose vacation plans for the day of the hearing were the reason that DC cited as grounds for taking the hearing off the calendar. DC’s motion is a wonderful piece of frenemy gamesmanship – DC is only being helpful to Marc Toberoff, you know, when it tells the judge that Toberoff thinks a family frolic and a September appearance in New York are way more important than showing up in this case.
Subtly twisting the knife, DC doesn’t ask straight out for a decision on the filings, nor does it tout the strength of its case. Rather, it slyly “defers to the Court if and when a hearing should be scheduled.”
All in all, it looks like another strategic miscue for the Pacific Pictures team. Yes, attorneys do go on vacation, and they even use it as a reason to move hearings dates. But in a case of this magnitude, with Toberoff’s filings taking a stridency that sounds so much like a comment screed the only thing missing is caps lock, the idea that he’d skip this supposedly landmark Superman hearing in favor of vay-cay and the Mad Myth Mysteries makes his theatric moral outrage seem ridiculous.
Judging from
By: Heidi MacDonald,
on 7/22/2012
Whatever the merits of the latest summary judgment motion in the dispute over the Superman copyright, its supporting exhibits bring together a number of important documents in two accessible filings.
The first set brings collects key contracts and court filings in chronological order, from the sale of Superman to the current termination dispute. We’ve seen much of this before, but not in one place. Especially worth noting are full copies of the complaint, court opinions & settlement in the 1947 Siegel & Shuster lawsuit.
The other set of documents, focusing on the Shuster heirs, contains material pertaining to Shuster’s estate and the 1992 pension arrangement, including an unproduced screenplay for a Siegel and Shuster biopic.
[…] Legal | No, the lengthy battle over the rights to the Man of Steel still isn’t over. Attorneys for Warner Bros. and the family of Superman co-creator Jerry Siegel on Tuesday were back before the Ninth Circuit to argue once again whether Siegel’s daughter Laura Siegel Larson was entitled to rescind a 2001 settlement agreement. The outlook doesn’t appear promising for the Siegel family. [Courthouse News Service, The Beat] […]