Tuesday, February 7, 2012

'Before Watchmen' is like gambling and smoking: Legal, but probably not a good idea

It’s time to revisit the saga of Alan Moore and Watchmen.

In case you missed it, DC Comics made public its long-rumored plans to publish this summer a series of Watchmen prequel miniseries using a variety of the industry’s top talents. The plans call for more than 30 issues in the project, with one arriving each week. Covers for a lot of the first issues have been released and the press release included a supportive quote from original Watchmen co-creator Dave Gibbons.

As soon as the news hit, the debate and bitching began over whether this was appropriate to do given the long-standing dispute between DC Comics and Alan Moore, with many fans and more than a few professionals showing the same kind of moral cowardice seen in the Superman copyright dispute and cheering on DC and calling Alan Moore a dick for not going along with the idea.

Among the rationales used to justify the “Moore is a jerk” arguments are:
  • Moore had discussed at the time Watchmen came out the possibility of doing some prequel stories himself. 
  • Moore has used other authors’ characters in his own work, most notably in League of Extraordinary Gentlemen, even encountering a small bit of copyright controversy for Peter Pan in the U.K. 
  • Moore, like everyone else in comics, has used and built upon characters others created to advance their career with the understanding that others will do the same with their characters. For example, Moore got his big break in American comics writing Swamp Thing, which was created by Len Wein and Berni Wrightson. 
  • Allowing creators to make their stories and characters off limits would be the equivalent of saying Superman should have ended after Siegel and Shuster stopped doing it, and that would be terrible! 
  • There’s also the argument that he signed the contract he signed and can’t complain about it now. If he really wanted to retain all the rights, he and Gibbons could have self-published Watchmen
All of which are poor arguments, in my opinion.

It always helps to go back to the facts and look at how we got to the place we’re at. Before that, an aside: Most of my books and magazines about comics were put in storage in the garage to make room for my daughter, meaning the many Moore interviews from years past I planned to cite in this post are not available to cite in the kind of detail I would like. I will try to approximate with online sources where possible. If I get the specifics wrong, let me know; I’m pretty confident having read up on this for many years that I’ve got it straight.

Most folks know Moore, who had become a writer of note in British comics, came to DC Comics in the early 1980s to write Saga of the Swamp Thing. The book had been slumping in sales and a new approach in Moore was needed to keep it going. Moore understood the job quite well: This was a mainstream American comic book that was distributed on newsstands with the Comics Code Authority seal, so there were limitations already in place on the types of stories that were going to be acceptable in a horror-tinged but still all-ages title. Moore succeeded rather well in reviving interest in Swamp Thing, and sales began to rise. The book was acclaimed in the fan market and began to draw the attention of the mainstream press, which was where the problems started. The shadow of the anti-comics crusade still lingered in the early 1980s and some of the powers that be at DC or over DC became concerned that a sophisticated title like Swamp Thing, even operating within the restrictions of the Comics Code, could attract unwanted attention to DC and the entire industry. 

For those who don’t remember, one of the less-savory aspects of the Reagan revolution was a censorious impulse that lead to Attorney General Edwin Meese conducting a major investigation into the evils of pornography with an eye on restricting access to that kind of material even for adults. This also was the time when parents’ reaction to PG-rated movies like like Indiana Jones and the Temple of Doom, which features a beating heart being pulled from a man’s chest, put enough pressure on the movie industry to create the PG-13 rating. It also was the era when Tipper Gore, wife of then-Senator Al Gore, lead a charge to restrict sexually suggestive lyrics in rock and pop music. So DC was not too far off base to worry about some of that energy could be turned comics’ way, because it already had with a number of conservative law enforcement officials prosecuting comics shop owners for selling objectionable material to minors.

The result was that DC made Swamp Thing one of its first titles to carry the label “Suggested for Mature Readers.” Many fans expected this would have been perfect for Moore, who obviously could take it darker. But the real result of such a label was to reduce quite significantly the distribution of the comic. Without the Comics Code seal, there was no newsstand distribution, and even local comics shops would cut back their orders of the title and be wary about who they sold it to for fear of being prosecuting. That fear was strong enough for many to simply not bother to carry such a title.

For Moore, this effectively means that DC was rewarding him for successfully reviving Swamp Thing under the restrictions placed on it by reducing his potential audience to a fraction of its previous size. I don’t know if Swamp Thing sold well enough for Moore and his collaborators to earn sales incentives, but it doesn’t take a math wizard to see what the distribution change would mean for that income. To Moore, his success was punished and not rewarded — a recurring theme for many top creators in the history of comic book publishing.

Still, Moore continued to work for DC, eventually signing contracts to allow DC to publish what would become Watchmen and for V for Vendetta. These contracts are the meat of his disputes with DC. At the time, DC was not allowed by its ownership to publish material to which others held the copyright. On V for Vendetta, Moore and artist David Lloyd had begun the strip in Warrior magazine in the U.K., but the publisher folded before the story was completed. Moore and Lloyd held all rights to the material, and DC wanted to re-publish the completed parts of the story in color and have Moore and Lloyd complete the tale.

I’m sure at first the idea of the temporary copyright transfer seemed like a great solution. At the time, the American comics market was almost exclusively periodicals, with only a handful of graphic novels and trade paperbacks having even been tried. Those, too, rarely stayed in print long. DC at the time likely had no trade paperback collections or plans in place to create the kind of book backstock they are now well known for. With no precedent, there was no reason to assume that the series would be printed as a series of comics and then essentially go out of print with the rights reverting to Moore and Lloyd after a short time.

Taking a bit of speculation on my part here: this arrangement must have seemed quite radical and forward thinking at the time. Getting DC to put in a contract a copyright reversion clause for a comic’s creators must have seemed like an incredible and hopeful breakthrough for those interested in creator rights. Moore must have felt like he had helped make progress that all creators could benefit from and that he had avoided with his own creation the traps that befell the likes of Siegel and Shuster and Jack Kirby.

The same deal was struck for Watchmen. A lot has been made in the past week that the original idea for Watchmen was to use the Charlton Comics characters. The argument is being made that Moore should not complain about the copyright dispute over Watchmen, since it was originally going to use characters owned by DC Comics and the versions that ended up in the final story are inspired, based on or ripped off, depending on your perspective, from those same characters.

And that’s an interesting argument but ultimately is one that fails to hold water. There are similarities, but there also are enough differences to make the characters distinctly different, especially in a legal sense. Fans who make this argument seem to overlook its implications for all kinds of comics characters. Following it could open up arguments that the Fantastic Four is ripped off from Challengers of the Unknown, X-Men from Doom Patrol, Man-Thing and Swamp Thing from The Heap, Hawkeye from Green Arrow, and on and on. That DC Comics needed a contract with Moore and Gibbons that transferred the copyright to the publisher is all the proof you need to show that even DC at the time thought they were distinct enough to need to clear the rights.

Most fans know what happened from here on out: Watchmen and V for Vendetta were published as a series of comic books and then collected into book editions that have remained in print and strong sellers ever since, preventing the copyright reversion from kicking in.

For the most part, I think DC was simply lucky in this deal. They realized they had a cash cow and have milked it for all its worth for the past 25 years. Yes, they stuck to the letter of a deal that benefits them tremendously, and from that perspective Moore et. al are just plain out of luck. But DC is violating the spirit of the deal, as the terms of the contract were drafted to make the copyright transfer temporary, and that’s where Moore is correct and DC is in the wrong.

Yes, the contract has always entitled Moore and his collaborators to royalties from sales of Watchmen. It’s clear, however, that the money is less important to Moore than ownership and control of his work, and he has given away his share of such proceeds to his collaborators. I think this is the one point that really puzzles some people. In the Superman copyright case, it’s all about money at this point. The Siegels have no interest in making new Superman comics, they want the money they are due from having recovered their share of the copyright to the character as of 1999. Same with the Kirby family claims — it’s about getting a piece of the very large pie Kirby helped create. And in America, where getting rich or dreaming about getting rich is the real national pastime, a lot of folks don’t understand how Moore can complain about all this when he is still getting paid. Obviously, the principle of the matter is what’s important to Moore, and he has the courage to call out the industry for its abuses and to walk away from it.

DC Comics’ decision to now create Watchmen derivative works after 25 years, against the wishes of Moore in particular, violates the spirit of the deal even more. That a lot of professionals are chiming in with the sentiment that Moore should just get over it and let others play with his work kind of amazes me. Watchmen is not in the same work-for-hire category as Fantastic Four or Green Lantern, which were created to be ongoing series. It was created to be a stand-alone, independent, creator-owned work and its creator feels — rightly, I think — that DC Comics is exploiting a loophole in the deal that allows them to hang on to a property they had originally only borrowed and intended to return to its creators.

I’ll briefly discuss some of the criticisms of Moore’s position that I listed earlier but have not yet addressed:
  • Yes, Moore had discussed doing prequels himself. But to say Moore’s plans to write prequels to a project he expected to own means that others can do it without his permission for the publisher that failed to return it is ridiculous. 
  • Yes, Moore has used other authors’ characters in his work. Those works are, however, now in the public domain and can be used by anyone. The copyright, which was originally held by the authors themselves, has expired on them and the authors themselves are long gone. 
  • Had Siegel and Shuster had control over Superman, then it’s possible they might have retired the character. He surely would be very different from the Superman we know today. That would have been a more human outcome for Jerry and Joe and their families — as for the rest, I don’t think it really matters. The world at large and comics would have gotten along just fine without Superman. 
If you have read through all of this, you surely have realized I will not be buying or reading any of the Before Watchmen comics. In many ways, it’s yet another sign of mainstream comics’ slow creative and commercial decline. DC and Marvel have such a stranglehold on the market and have become in the past two years in particular even more corporate minded and creatively bankrupt that it’s hard to find any fresh air left in this medium. Independent comics have so slim a share of an already slim market that it seems there’s no place for talent to develop and, as soon as it does, it’s sucked up by the DC and Marvel machines, which are, unfortunately, about the only ones left who can offer creators enough work and compensation for them to make a living at comics.

It would seem I have more to say about the current state of comics, so I’ll save that for my next and possibly last post.

2 comments:

Leigh said...

My gripe with this Watchmen prequel is just on the basis that the work stood excellently on its own. The way the story was told, really left no relevant information left in the lives of these characters to explore.

The points you bring up make me even more reluctant to even acknowledge these issues. And to think they're going to make thirty of them-- EGADS!

Thank you for the post.

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