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davidmariottecomics · 1 year ago

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Copyrights and Wrongs, Part 3

Happy October and welcome to the spookiest month!

This week, we're continuing the long talk about copyright! This week I wanted to talk particularly about fan works and their place in the copyright conversation, as well as a couple last sort of fundamental concepts that're probably helpful to have down. And, as unfortunately so often happens, I was given a real in for it!

That Batman "Comic" Not to dip too deep into next week's topic, but because it's timely, a tech bro shared the Batman "comic" he made with AI on Twitter. I'm not going to link to it. If you've managed to avoid it, it's better you don't see it! But let me tell ya, it's a piece of hot garbage. Bad from top to bottom. I'm not *exactly* sure who all it stole from, but it is CLEARLY stolen art. There's definitely Brian Bolland and Gary Frank in there, and I think either Mike Allred or Jonathan Case Batman '66 art. I also wanna say Ty Templeton, or someone in the Batman animated vein. The lettering is god-awful (more on that in a minute). There's no intention behind the compositions, there's no storytelling, there's no thought to the gutters or the pacing or internal logic. But the tech bro who shared it sure seemed happy with himself. He sure seemed happy with the would-be scammers and anti-social losers who were hyping his stolen valor up. And I'm sure he'll be happy when his Twitter paycheck rolls in because he's verified and benefiting from the profit sharing of making something controversial.

But here's where copyright gets a little weird.

So, he can't copyright the comic he made. Under current regulations, materials made by AI are not recognized as original creations. And he *literally* didn't do anything. He just shoved a word salad of "prompts" into the generator and let it roll. Even the other really terrible AI comic from earlier this year had the text recognized as copyrightable because at least that jerk wrote it, even if the art was not (because, again, all stolen). But even if this douche had done anything to actually make this comic, he still wouldn't really have copyright.

When is Copyright Applicable? I'm going to take a bigger step back for a second, just to get the last couple conceptual things down.

When a work is "fixed", it falls under copyright in the U.S. If you draw a picture of a cool dog on a napkin, that's as protected by copyright as if you made a major motion picture or this very blog. Copyright only doesn't apply when a work isn't fixed--if you've got an amazing idea but don't have it down on paper (or computer or whatever way of getting it out of just your head), it doesn't count. It doesn't need to be published, necessarily, but you need to document that you've put the work into the world in some way. And when you've done that, you hold the copyright to what you've created.

Now, there is an extra step in U.S. copyright law, which is registration. While you automatically receive a copyright for creating a work, protection is enforcable once a work has been registered with the U.S. copyright office. Basically, if the government and lawyers can look up and see that you have the copyright--that you took action to protect it--that makes it that much more powerful in legal proceedings. Because we're already talking about him, Batman is copyright of DC comics (and their parent company, Warner-Discovery or whatever they're called nowadays). Batman's a registered copyright, so DC's got their paperwork in with the copyright office and if they want to enforce their copyright, they're going to have a lot of power to do so. We've already talked in the last couple of weeks about the ideas of fair use and work for hire and people being given permission to make new works under a copyright, so do keep that all in mind going forward.

But something that's also important to mention here is that Batman is also trademarked! And the basic idea of trademark that is different from copyright is that trademark is about iconography and naming associated with official sources. And Batman's trademark is somewhat famous. Even though he often no longer wears it, if you think about Batman, there's a distinct chance that you picture a yellow oval around a bat. It's the Bat-Symbol (and the Bat-Signal). It is inherently indicative of Batman in a way that just a bat outline by itself isn't. And because of that, it's been trademarked (same as Superman's S-shield on his chest). It is a distinctive brand identifier that still gets used today. And the old story is that because DC was very concerned with the trademark, they asked Frank Miller to use the bat-oval in Dark Knight Returns and he compied enough when he had the oval part shot off and broken and then it was just a big bat for the rest of the run. The importance of trademark is it has different enforcement standards than copyright, and if it's registered, it's another hugely powerful tool in legal proceedings because it is about the relation of a brand to a company, rather than that of an author to a work. The yellow oval recognizes that Batman is a DC product and therefore carries DC's standards (and DC's logo is it's own way of identifying it as a company brand). Beyond that, if you look at a DC comic, chances are it'll say something like "All characters, the distinctive likenesses thereof, and all related elements are trademarks of DC." The iconography of costumes and standard visual depictions has entered the realm of trademark.

Batman is not, however, patented. Patent is the other big form of intellectual property ownership and recognition in the U.S. I'm not going to talk about patent too much because it does tend to be the least applicable to comics, but the short version is it is used for inventions. Basically it says if you make a new type of salad spinner, and you publish and register the designs with the government in a way that could be replicable by someone who has the understanding of how to follow your instructions, you can maintain exclusivity for a time. Where you might see this in comics is if someone created a new printing process and their printer was the only one legally allowed to use this process for a time, or--weirdly and conversely--if someone made a machine that was like a big pen that produced physical reproductions of AI generated images, that machine could potentially be patented.

Derivative Works, Transformative Works, and Fan Works

One of the major rights granted to a copyright holder is control over derivative works. As DC owns the copyright to Batman, they get to decide who makes all new Batman material--both new comics and who is granted licenses to make toys and shirts and umbrellas and whatever. They own every part of the comic--the script, the art, the lettering, the full execution including things that may've been cut--and they also have the right to change it however they want, from edits like fixing typos to using a story as the basis for a totally different work in a totally different medium, which is a transformative use of the work, another major right held by copyright.

It's October and for Chris Samnee, that means it's Batober, where he draws a Batman (or Bat-Family member) a day. They look great. And, as we've clearly established, Batman is owned by DC. Because Samnee doesn't own the copyright, the existing claim on Batman would supersede his own on the original art. Now, at the moment, it may fall under fair use. The art itself is original and not a recreation or tweaking of existing copyrighted materials. It's being posted for free without a commercial component. And it isn't a danger to DC or Batman--either through competition of sales or through depicting the character in a way antithetical to the copyright holder. But if Samnee sold it--which I think he does sell all his drawings at the end of the month--maybe that changes things.

Let's say you make a Batman fan comic. If it is, just for example, not authorized by DC (implicit in being a fan comic), attempting to be a serious take on Batman and the related characters rather than parody, done in the style(s) of existing Batman art, tracable to existing Batman assets, and being used for a proof of concept to promote a non-DC business, boy howdy, they would have the option to claim infringement. And if you sold that comic, they'd really have a strong standing. It is inherently an unlicensed derivative work and, particularly if you didn't actually put in any work to make it your own, you've got no claim on it being transformative. I usually don't side with major corporations--and obviously fear their interest in co-opting this technology for their own purposes (btw, shout-out to the WGA on getting some AI protections in the new contract and on generally holding out on their strike until they got a good deal! Here's hoping for good to come SAG's way, and the way of all striking workers, soon)--but if more corporations wanted to start filing infringement notices on the AI grifters who are stealing their stuff, I'd be in favor of that.

But... the flip side is y'know, I do appreciate fan works (that are actually created by people)! I've mentioned before, I feel like a zillion times, that as an editor, I CANNOT AND WILL NOT read fan comics for things I work on, nor can I or will I read unsolicited pitches. And it is specifically because of everything we've been talking about. An unsolicited pitch is in-and-of-itself a fan creation until and unless a representative of the copyright holder solicits it.

Most fan works exist in a kind of gray area--legal by virtue of a blind eye and a disinterest on all ends for a protracted legal case. If you create something meant to be taken seriously (even if it's silly, if the intent is to show your skills and tell a story in some fashion that is not obvious parody) that is based on existing intellectual propery, and that has not been created under a work for hire contract, your rights may be superseded by existing copyright. However, there may be some elements that in some way might not be covered by that existing copyright, and the creation of new stories is (well... as long as someone is actually writing them) almost always going to be subject to the question of transformation of the work. What it comes down to is I don't want to stake a claim on your execution of your idea as even an incidental representative of a copyright holder and you don't want to potentially forfeit whatever rights you may have by virtue of having created a derivative work. (As a brief aside, permission does make a difference, but the limits and understandings are still really critical--you can tell me it's okay to read your pitch, but if I say I can't or would rather not, I can't. But if I solicit letters and art and cosplay for specific, credited use in the letters pages of a Sonic comic and I ask every submitter for their okay to print that material, that is understood to be reasonable use.)

I obviously do see fan art and sometimes fan comics and whatever. It's part of existing in the communities on the internet and at shows and in the world. And it can be incredibly helpful to see fan art! I've found some amazing artists that way! On some level, that's a big part of why copyright isn't super strictly enforced in fan and creative spaces. Someone like Chris Samnee drawing a bunch of great looking Batmans for free might help boost public awareness of Batman and you don't wanna hit creators who you might want to work with on infringement (most of the time). You don't wanna pick battles with people working for you or who may work for you (and conversely, the people you're working for, at least most of the time). But as an editor, I need to be hyper aware of what I'm interacting with and how, and as a creator, you need to understand your own limitations too.

This has been really long, so I'm just going to throw in a couple more bullet points on interesting things I wanted to talk about with this.

More like Stinktober. I mentioned Batober earlier and one really interesting and relevant recent copyright case is in fact "Inktober". Inktober is a registered copyright, so the name and specific execution and prompts or whatever are covered as issued by the creator each year. So you can't just call your own practice of ink drawings following prompts every day in October "Inktober". But that courted a lot of controversy both in what infringement claims may be made against it and also in the creator having infringement claims brought against him. It was messy and you'll notice a lot of artists still don't use the "Inktober" naming or specific prompts.

Antragsdelikt/Shinkokuzai and Doujin. This is Japanese copyright law, and not U.S. copyright law, but I think the system around doujin is really interesting. Doujin is broadly a term for self-published works in Japan (and doujinshi is the term for printed works in particular). It's a mix of original works, fan works, and even occasionally stuff that's kind of inbetween. The creator of Sweat and Soap, for example, released a NSFW one-shot of their own book as a doujinshi, so it's not through the publisher or "officially" part of the canon, but it's by the creator. Anyway, the reason I bring it up is a lot of these are fan works that fall under a doctorine called shinkokuzai or (in German, Antragsdelikt), which is the offense can't be prosecuted without a complaint from the victim. So, in Japan, if you wanna make a Chainsaw Man fan comic, unless Tatsuki Fujimoto chooses to send you a cease and desist and act on his copyright, you can't be prosecuted for creating and distributing a derivative work. There it's codified under the understanding that fan works can be really beneficial to an ecosystem of creative talent--both in developing future talent and creating works that are understood to not be competing with but complimentary to in some way the original works by the original creator. It's a flawed system--don't get me wrong, it definitely allows for some really heinous stuff to be created with other people's characters that might not get addressed because if the original creator doesn't know and file a complaint, nothing can be done--but it is an interesting study in how in some places, this stuff can be legally more protected.

Selling at Cons vs. Websites and What Kind of Merch You Have. Ultimately, copyright's strength comes down to enforcement. It is a good thing that people are filing infringement claims and investigating the boundaries of fair use because it does further define and refine what you can do. We live in a very strange system. Like I said, most fan works are in a gray area (and, yes, most professionals also create fan works that they then sell). You can get in trouble for selling your art prints on Etsy or Ko-Fi or whatever because they use licensed characters without permission. And, yes, there are thieves on Etsy who do steal your original art and sell it on other stuff and somehow don't get hit with copyright infringement claims, either because you don't know how to file one or they're good at being fly-by-night or whatever else may occur. Sometimes conventions have people going around on behalf of companies and giving verbal or written cease-and-desists on fan art, though, again, it's pretty rare because most companies don't want to piss off their fans and potential creators, and most artists aren't operating at margins or with materials that are competitive to the originals. And, sometimes, you can be selling something where you would be legal sound because y'know it is understood to be parody or significantly transformative as to be fair use. Like, just try to be aware of what you're selling and where and who else is there and if they are particularly protective of their works.

Okay, I think that's it for this time! Thanks for sticking with me through another really long one. Keep reading for some important stuff in the announcements. Next week, we'll finish talking copyright so you can get your comments submitted to the Copyright Office's A.I. study. Week after that will either be a quick Q&A to tackle any remaining copyright questions that may've occured or will be the other thing I've been working on. See ya in a week!

What I enjoyed this week: Blank Check (Podcast), Craig of the Creek (Cartoon), Honkai Star Rail (Video game), One Piece (Manga), Pokemon Violet (Video game), Chainsaw Man (Manga), Adventure Time: Fionna and Cake (Cartoon), Night of the Living Dead (Movie), The Archive Undying by Emma Mieko Candon (Book), Kaiju No. 8 (Manga), Witch Watch (Manga), Sex Education (TV show)

New Releases this week (9/27/2023): Brynmore #3 (Editor) Godzilla: The War for Humanity #2 (Editor) Sonic the Hedgehog: Amy's 30th Anniversary Special (Editor--happy birthday Amy and Metal Sonic)!

Final Order Cut-Off next week (10/2/2023): Godzilla Rivals: Round 2 TPB (Editor) Sonic the Hedgehog: Knuckles' Greatest Hits TPB (Editor)

New Releases next week (10/4/2023): No new books from me this week.

Announcements: Here's the big thing: Starting today, I'm doing a member drive over on my Patreon! You can read about it in a public post there! If you join, renew, or updated to the Feature Fan ($10) tier or above, you're going to get a Mystery Comic Grab bag! And as a patron, you're going to have a bit more choice on what all it is! All the info is on there, so if you're curious, please do give it a look! And it'll be going through all October!

If the Patreon isn't your cup of tea at this time, or you wanna do more of a one-time donation, from Oct 3rd to the 18th, I'll have limited time 2-3 comic Mystery Bundles in my Ko-Fi store! Same premise as the Patreon--there'll be a bundle for grown ups and one for kids. They're pay what you want with a $15 minimum. If you send $25 or over, I'll ship you a trade paperback too!

It will be US only on both the Patreon and Ko-Fi just because shipping internationally's very expensive right now. But, for international folks, I will put together a nice little digital goods bundle for ya!

Wanna support me otherwise? I'm on Ebay, there's my webstore, or you can support Becca through their channels! To be updated next week: Gotta see if my laptop has died died or not. Doing that like right after posting. But if I need a new computer, well, I'll be asking for lots of $$$.

Pic of the Week: Do you think Minions nuggets are made with real Minion meat?

#comics #comics editorial #copyright explainer #Minions nuggies #batman

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