Traditional copyright faces webcomics with an uncomfortable choice. Its restrictions, properly enforced, would mean a virtual end to crossovers and homages, fan art, fan fiction, and many other staples that make the webcomic a more entertaining creation and foster artistic growth.
A total lack of copyright, however, leaves unscrupulous readers free to â€œbootlegâ€ subscription sites, program tools to deprive comics of advertising revenue, and even profit from othersâ€™ labor without permission.
The Creative Commons license presents a possible solution. It lets copyright holders to grant some of their rights to the public while retaining others, through a variety of licensing and contract schemes, which may include dedication to the public domain or open content licensing terms.
Answering a few of our copyright questions are some well-known names associated with Creative Commons, and a cartoonist whoâ€™s well-versed in technological issues.
- Lawrence Lessig is chairman of the Creative Commons project, a Professor of Law at Stanford Law School and founder of the school's Center for Internet and Society. He has also taught at Harvard, Chicago and Berlin and represented web site operator Eric Eldred in the ground-breaking case Eldred v. Ashcroft, a challenge to the 1998 Sonny Bono Copyright Term Extension Act.
- Neeru Paharia is Assistant Director of Creative Commons and was instrumental in creating its "copyright comics" section, which explains the hows and whys of Creative Commons and is released under a Creative Commons license.
- Mia Garlick is the new General Counsel for Creative Commons.
- JD Frazer is the creator of UserFriendly, one of the first online strips to gather a truly massive following. His comic, about tech life and work, has featured many references to free software and the open source movement, yet he's had to defend his own IP and copyright from those who'd be a little too free with them.
- Finally, Cory Doctorow, widely hailed as one of the greatest SF authors of the 21st century, has written extensively on copyright issues and released novels under different versions of the Creative Commons license. He is outreach coordinator for the Electronic Frontier Foundation.
Comixpedia: I'd like to kick things off with the question that motivated this roundtable in the first place: Which rights should online cartoonists keep for themselves, and what rights should they give back to the community?
Doctorow: Here's one: if you go into a comics shop today and buy the first perfect-bound collection of a new book, you'll get issues 1-5. Ask the shop clerk for issue 6 after you finish it, and he'll tell you that the series if up to book 8 now, and 6 and 7 are gone forever. You can wait six months and get the next collection of issues 6-10, or you can start reading the serial at book 8.
The interesting thing is that the audience for perfect-bound collections is different — and broader — than the (dwindling) market for individual comics. They shop in bookstores, not specialty stores, and if we could convert some fraction of them to comics readers, we could migrate these people to the specialty stores and prop up that core business. But it is prohibitively expensive to warehouse and distribute all the comics after their month on the shelf has expired.
Now, what would happen if every comic was downloadable from the web 30 days after it was published (e.g., the day of its "display until" date)?
Would it cannibalize any of the existing sales of comics?
I don't think so. The board-and-bag fans will not eschew the stores just because they can get a reading copy online. Maybe you'll lose the "reading copy" sales to readers who buy two copies and keep one pristine and untouched, but they're a tiny, tiny minority of comics buyers.
Would it lead to new sales of comics?
Yes. People who want to convert from bookstore-based collection-readers to monthly serial readers can fill in the gap between the current collection and the monthly by downloading it. This is the largest pool of untapped, ready-to-be-converted buyers for monthly books, and they represent a sizable potential infusion of new money into the field.
The rights question is, "How to best enable this?"
Baen Books publishes series science fiction, and if you buy book 13 of a Baen Book, it comes with a CD ROM containing books 1-12, and you can also download these gratis from their website, and recirculate them. There is no [digital rights management]. Universally Baen's experience is that they sell more of book 13, and MORE OF BOOKS 1-12. The word-of-mouth effect of people sharing these books around, making concordances, quoting long sections of them in online reviews, emailing them to friends, etc — it drives WAY more sales than it displaces.
If every perfect-bound collection came with a CD with all the episodes to then, and if the web-sites supplemented that with the episodes to the current-minus-one, all licensed under a CC license allowing for noncommercial remixing and redistribution, it would solve this.
As to which rights creators should retain, I don't have any opinion. I think, though, that between creators and publishers, there should be a nonexclusive transfer of the rights to make unlimited noncommercial redistributions and remixes to the public.
Lessig: I think it is useful to be clear about the sense of "should" here. Obviously, one could have all sorts of moral intuitions about how much anyone "should" "give back to the community." But I also think it is most useful to distinguish that sense of "should" from the much more pedestrian sense of "how should I do this if I want to build the biggest, most successful community around my work." Of course we can discuss both. But it would be helpful to separate the two because the issues within each are very different. The moral-should talks about what artists owe others given what they build upon, etc. The practical-should talks about what techniques work best. I take it Cory was addressing the practical-should question — usefully in my view.
Frazer: Speaking as both a publisher and creator here. I don't have any gatekeepers between myself and my audience/consumer base.
I think cartoonists (or any creator for that matter) should always retain the ultimate meta-right of discretion. When a fan asks for permission to do X with my content, I very rarely say no unless X involves something commercial. Simply asking shows me that the fan respects my rights as a creator and that in itself is enough most of the time for me to agree to his or her request.
That probably isn't helpful for this kind of discussion, however, as I agree there are *some* rights that we should assign to the community with a blanket contract. "Hey, Murray, mind if I stick one of your strips up on my home page" isn't the kind of question I'd like to answer fifty times a day every day.
I think the key here, for me, lies in the simple question: "If you do X with the creator's work, will it hurt the creator?"
Things that hurt can be lumped under two broad categories: actions that interfere with the creator's bread-and-butter, and actions that threaten the integrity of a creator's work. A good example of the former: some enthusiastic fan decides to mirror all 7+ years of my archives and make it available to the public, thereby offering my content in a location that I don't control and probably causing my ad revenue to plummet. A good example of the latter: a bitter ex-fan decides to take the strips and replace the writing with, say, something you might find in Penthouse Forum. Not to say that there isn't a market for that kind of thing, just that UserFriendly has always been PG-rated for very specific reasons. I also don't appreciate someone else taking years of my own sweat and tears and in minutes turning it into something of which I don't particularly approve.
If it doesn't hurt the creator, I'm all for it, really. If it wasn't for the fact that people could readily pass strips and links on to one another, I doubt very much UF (or most successful online content plays) would be enjoying the success it does. As the lion's share of my income comes from banner ad sales, I always prefer people to view the strip on the site itself. However, I can hardly begrudge anyone wanting to email a particular favorite strip or even a small series of them to friends. I very much believe it all ends up helping me in the end, and anecdotal evidence props that belief up.
Rights I think that the community should have without having to ask the creator include being able to share the content around, "within reasonable limits." I'm not sure how to exactly define that, but I believe Dr. Lessig et. al. would be able to offer a pretty sharp definition. Also, collecting your favorite content and placing them on your own web page isn't an issue for me either, provided I get a link back to my site. No mirrors, again.
One question I'd like to put to [cartoonists and creators]: what are your feelings about fan fiction based on your work and backstory? I'm overwhelmed with ambivalence myself. On the one hand I consider it among the highest forms of flattery, yet on the other hand I feel some considerable trepidation in letting others loose in my own private sandbox.
Comixpedia: Cory, what are your feelings on fan-fiction?
Doctorow: I'm for it.
Comixpedia: The comparisons between print and online are pretty well-established. What do you think are the advantages and disadvantages of telling stories in online comics vs. online text, in terms of the sharing that Creative Commons encourages?
Doctorow: Text is searchable, it emails well, it has good tools for manipulation by end-users who lack any special skill set, it prints and reformats well, it is easy to encrypt and syndicate and hard to filter, block or snoop on. Images are rich, pretty, and have their own visual vocabulary that ensures that their stories are well conveyed to their audiences. But images are harder to manipulate, harder to excerpt, harder to search on, and harder to keep free of prying eyes.
I can't draw worth a hell of beans, but I can write a novel+ every year, so that's the form I like to work in. I enjoy reading both, online and off-.
Creative Commons is a tool, and can be used well or poorly. How would you advise beginning cartoonists to make use of it? What about cartoonists with more established online "brands?"
Pahlia: We can really give advice, but it depends on what the cartoonist wants. The licenses basically allow two things: sharing, and remixing. Both are good for promotion on the internet. Remixing might even provide a bit more buzz if fans could actually interact with their favorite comics.
Comixpedia: The Creative Commons site features a set of educational comics done under the CC license. Creative Commons recently opened up a Science Commons division. Do you think educational material finds CC particularly useful? Why or why not?
Pahlia: Educational materials meaning any kind? I think if the purpose is to educate, then the desire would be to get those materials out as far and wide as possible, and leave no legal issues to obscurity. Therefore, I think CC is a natural fit with educational materials.
Comixpedia: A lot of the comics economy is based on the rights to continuing series and characters, rights which often belong to companies, not creators. There is a case in court right now where the heirs to one of the creators of Superman are suing to reclaim half the revenues that character brings in. The essence of the claim is that the rights were in flux for a period of five years (I'm sure you're more aware of the copyright issues than I am, but just in case, this covers it pretty thoroughly.). What's your opinion on this?
Garlick: Not quite sure if I understand which issue raised by the case you would like a comment on. The termination of transfer issue (which is what is in dispute in the case)? Or that in the comics world the rights to continuing series and characters are often owned by the companies, not by creators?
As regards the second issue, from a Creative Commons perspective the issue that the rights to continuing series and characters are often owned by the companies, not by creators, in the comics world reflects the fact that it has been and continues to be a reality that creators often sell the rights to their series and characters to companies when they are starting out because they are trying to make a living from their work and because they are trying to reach as wide an audience as possible. The copyright and the potential for a comics character to be the next Superman are one of the most valuable (in a monetary sense) parts of a comics series and character. While Creative Commons can't change the reality of how people make a living, Creative Commons can give creators the legal and technological tools to open a dialogue with the world about how they want their work used, rather than just granting exclusive rights to their creations to a company in an effort to do this. That way, a creator can reach as wide an audience as possible and still retain ownership of their copyright (and, depending on their license they choose, give others the opportunity to build on their work). Alternately, a comics creator can sell some of the rights to their work to a company on condition that they use a CC license to increase the exposure of their creations.
As for the first issue of termination of transfers, this is not an issue that implicates Creative Commons because it impacts the relationship between the comics creator and any company to whom the rights are sold. It does not implicate how a particular work is licensed, which in the case of a CC license, involves the relationship of the licensor to the licensee/general public.
Frazer: The Siegels case is hairy. Yuck. Off the cuff (and I admit I didn't read the articles very closely), I'd say that the Siegels should be favored. There are several points here that bother me and make the case less-than-clean-cut, including the fact that it's the creator's widow and child that are suing, not the creator himself, and there seems to be some real question over work-for-hire.
Ultimately I tend to side with the creator — big surprise — but on the other side of the same coin I believe that if a creator signs his work over to someone else, s/he has little if any say in the product from that point on. I believe all licenses for rights to creative should automatically expire after $DURATION, and if something is to be deemed a work-for-hire it's up to the employer to make that clear in discussions and in the legalese.
Doctorow: The problem with Superman and Siegel and Shuster wasn't too little or too much copyright: it was sleazy, sleazy employment practices on the part of DC. The problem with using copyright (or trademark) to solve these problems is that it creates what economists call "anti-commons" effects, where there are so many people who have the right to charge rent for the use of ideas or images, or to refuse to allow their use altogether, that creation is nearly impossible (what if Siegel and Shuster had needed the Toronto Star's permission to lampoon it as the Daily Planet? What if they'd needed to get permission from Nietzsche's heirs to use "Superman" as the name of their hero?).
There are a lot of ways of fixing the problem of exploitative labor practices in magazine and funnybook publishing, including more stringent definitions of Work Made For Hire (so that employers who want to acquire a total interest in their employees' creations need to provide benefits, salary, and retirement plans), that will allow creators to earn a living wage and bank it accordingly so that their families will be taken care of after they're gone, just as every other professional does.
But I don't think that creating never-ending, impossible-to-clear tangles of rights to characters and creations is a good solution to this: DC should be able to unambiguously acquire the rights to Superman so that it can exploit them without worrying that far-flung descendants of the inkers, artists, writers or pencillers will come after them later for a slice of the pie; at the same time, the inkers, artists, writers and pencillers should be protected by statute and practice in a way that guarantees them a decent wage and the means to care for their families.
Thank you all for your time and attention.