Copyright, Comics,
and Compulsory Licensing

© 2008 - Ben Heine

Reading a post on “
Positive Liberty” from back in August, I came across this comment from D. A. Ridgely:

And okay, so we’ll always have people writing bad poetry whether it is copyrighted or not. For the most part, copyright of bad poetry at least could be said to do no harm. The world does not suffer by my refusing to share my high school written poetry with it.

But the world does suffer if real works of good art go uncreated because self-interested artists decide there’s just no point in doing art, better to go get that MBA.

On another blog, Jim Glass wrote:

Say that without copyright you came up with a great, clever cartoon and put it on your web site. What would prevent the scouts from Disney or Fox from just taking it as their own, putting $1 million behind it, making $100 million, and saying screw you. Would you go on to make another cartoon then?

Defenders of our intellectual property system frequently bring this question up: Without intellectual property (in the form of copyrights and trademarks), what incentive will artists have to produce art?

I’m a cartoonist (you can see my cartoons here and here, if you’re curious), and the only art form I know a lot about is cartooning. Most cartoonists are big fans of intellectual property, and get hysterical if we believe copyright is threatened. But copyright and trademark, as they exist in the US, have been a mixed blessing for some of the best American cartoonists.

The problem is, once we have a system of law which says “only entity A can publish stories about such-and-such characters,” then it’s possible for the right of a creator to sell stories about her characters to be taken away. This has, in fact, been the rule for most of comics history. Superman’s creators, Jerry Siegel and Joe Shuster, didn’t own Superman – and, decades later, found themselves penniless and legally forbidden from selling comics featuring their most valuable creation.

Jack Kirby is the most commercially important creator in the history of American comic books. Kirby created or co-created Iron Man, The Hulk, The Fantastic Four, The Silver Surfer, Captain America, Thor, and The X-Men, among others. Collectively, Kirby’s creations are intellectual property worth billions, providing huge profits (and thousands of jobs) not only in comics but also on TV, in movies, and in toys.

But during Kirby’s commercial peak, in the early days of Marvel Comics, Kirby was often unhappy with his pay and with his rights as a creator. Furthermore, Marvel had a “gentleman’s agreement” with DC not to poach artists from each other, and no other comic book company had a stable of valuable superhero properties to hire Kirby to draw. As a result, Kirby’s pay wasn’t in line with the worth of his work.

Kirby didn’t stop working — how could he? He had a family to support. Plus, by all accounts, Kirby loved creating comics. But what Kirby did, according to Mark Evanier’s biography of Kirby, is stop creating new characters for Marvel. Instead, when Kirby thought of a new idea, he’d write it down on a scrap of paper and put the paper aside. Many of those papers got lost.

Eventually, Kirby was hired by DC comics, and he went on to create some powerful work. But DC rarely gave Kirby the support he needed (they even went so far as to have another artist redraw Kirby’s Superman faces, since Kirby’s faces didn’t look like DC’s then-existing house style). Even though his work remained artistically good, Kirby never again hit the same peak commercially, and his pay was still lousy. As soon as Kirby found work outside of comics — creating character sheets for Saturday morning animations — Kirby quit comics.

If the purpose of intellectual property law is to encourage the best artists to create as much of their best work as possible, then IP law failed Jack Kirby. Kirby’s interests weren’t protected. The value of his work made it essential to Marvel Comics to legally divorce Kirby from his creations (they even refused to return his original artwork for years). The fact that any character he made up, he would have been giving up the right to control, encouraged Kirby to withhold characters during his most fertile creative period — ideas that might have been worth millions.

Well, you may say, that’s Kirby’s fault for selling the copyright to his work, rather than holding on to ownership. But suppose Kirby had refused to work with Marvel Comics. Who would that have helped? The world would most likely not have had the X-Men, The Hulk, The Fantastic Four, and many other Kirby creations. Again, IP law would have failed to encourage Kirby to create as much as he could create.

Probably if Jack Kirby were here, he would disagree with me. But I think Kirby would have been better off if it hadn’t been legally possible for Marvel Comics to own the exclusive right to publish the characters Jack Kirby created.

Suppose that instead of our current system, we had a system of compulsory licensing for fictional characters. What this means is that anyone could write or draw any fictional character they like — but if they aren’t the original creator, then they are legally obliged to pay the creator a royalty for use of their work.

So to return to Jack Kirby’s case. Yes, certainly, Kirby would have been pissed off because people were using his characters in ways he didn’t like — but that was frequently the case anyway. (For example, Kirby hated what Stan Lee did with the Silver Surfer character). The difference is, Kirby would have had no motive to withhold characters during his most commercially valuable period, because he wouldn’t have been giving those characters away forever by drawing them.

It’s also likely that Kirby would have been more successful at enticing another publisher to hire him, if Kirby could have offered not just his own services, but his own services on his hit creation The Fantastic Four. That, in turn, might have forced Marvel comics to pay Kirby what Kirby was worth, in order to keep Kirby from moving to another company.

The down side of this is, Kirby might have found himself in the position of competing against another creator’s version of The Fantastic Four. But would this be such a terrible outcome?

1) Kirby might have been better off being able to create The Fantastic Four, and competing with another version of the same characters, than he was in reality — in which, for his entire post-Marvel career, it would have been illegal for Kirby to create a Fantastic Four comic.

2) Kirby would have welcomed being paid for all the times that lesser creators used his creations in their work. This would have provided Kirby with an incentive to keep on creating new characters, rather than our current system, which motivated Kirby to withhold new characters.

3) Comic book consumers would be better off if publishers had to compete to produce the best Fantastic Four comic. This, in turn, would have raised Kirby’s value to his employers.

When I bring this topic up in conversation, I am inevitably asked how I’d feel if someone other than me started making up their own comics about Mirka, the protagonist of my comic book “Hereville.” Woudln’t that make me furious?

I don’t think it would. I think that my version of Mirka — my particular vision — is what makes “Hereville” worth reading (if it is worth reading). If our laws were set up for it, I’d be happy to compete with other creators, to see who’d produce a Mirka that readers want to read. In the end, I think that the best work sometimes has a competitive advantage, and will tend to be remembered most by readers.

And if someone else ends up having a hit best-seller based on my characters — well, at least I’d get royalties. But I might get more than that, because sales of character-based fiction are not a zero-sum game.

For instance, when popular movies are made of comic book characters, sales of that comic book go up. Suppose Joan draws a best-selling ExampleLass comic. That could easily cause the sales of David’s competing ExampleLass comic to go up, because interest in the character is increasing. If David is the creator of ExampleLass, then he’d benefit twice — once in increased sales of his own comic, and then again when Joan pays David royalties.

I’m sure that compulsory licensing would have problems. But so does any imaginable system. The real question is, might compulsory licensing be better than our current system? For many of the best creators, such as Jack Kirby, I think the answer might be “yes.” (Source: