Note: This is not legal advice and is provided for information purposes only. The topics discussed in this post apply to U.S. law and are not a complete statement of the law. If you are in need of legal advice, please consult with an attorney who can provide specific legal advice to meet your needs.
There is no such thing as comic book law. As much as I’d love there to be a unique body of law dealing with comics, the comic book industry has a number of different legal areas that impact it. Of these legal areas, the two most relevant to creators involve contracts and intellectual property.
To me, contracts are vitally important for creators. It is important for creators to have their own contracts for services they provide and for the people they hire. When you are signing someone else’s contract, it is important to know what it says before you sign it. If you sign an agreement, then you are bound to all of the provisions contained in the contract.
When dealing with contracts, if nothing else, make sure you can answer these questions:
- How much will it cost?
- When and how will I get paid?
- What will I be doing for them?
- What will they be doing for me?
- How long does the contract last?
- Who owns the intellectual property rights?
- Do rights ever revert?
- How can this agreement be terminated?
While this list is not exhaustive, these are some of the primary questions you should be asking, and the answers to them should be reflected in the agreement you are reading. Make sure that you understand every section, paragraph, and sentence of the agreement. You do not want to unknowingly give away your rights to your creation or give them an unlimited license to your work.
When you are presented with a contract, remember that it is a negotiation. If someone presents you with a contract to sign, read it. If you have no questions and have no objections to what is stated in the contract, then feel free to sign it. If there are things you don’t understand, ask for clarifications. If there is language in the agreement you are uncomfortable with, ask for changes. In most cases, the worst thing they can do is say no.
As I mentioned, understanding contracts is important for creators. I believe understanding intellectual property is equally important. It’s important for creators to know what intellectual property protects, how to protect their works, and how to avoid being sued for infringing on someone else’s intellectual property.
Generally speaking, there are four areas of intellectual property law – patent, trade secret, copyright, and trademark. A fifth area of law, right of publicity, is sometimes lumped in with intellectual property rights even though it arises from a person’s right to privacy. In all likelihood, a comic book creator should not have to worry about patents or trade secrets, and I will not discuss them here. However, copyright, trademark, and right of publicity law are very important.
In the United States, Copyright protection is granted by federal law. It protects “original works of authorship fixed in any tangible medium of expression.” (17 U.S.C. §102(a)). Included works of authorship are “(1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works.” (17 U.S.C. §102(a)). The Copyright Act grants exclusive rights to the creator of the work for the life of the creator plus seventy years, or 95 years from the date of first publication or 120 years from the date of creation, whichever is shorter, for works made for hire, anonymous and pseudonymous works. Technically, you do not need to register your copyright. However, in order to enjoy the full benefits of copyright protection, you must register your copyrighted work with the U.S. Copyright Office within three months of publication of the work. For more information on copyrights, check the circulars on the Copyright Office website.
Trademarks are used as source indicators for goods and services (also known as service marks). Trademark rights arise from use in commerce, and can be protected as long as your trademark is in use, and, if the mark is registered with the United States Patent and Trademark Office (USPTO), you have filed all the required documents showing continued use. Generally speaking, the first person or company to use a trademark for their goods or services has acquired some rights to prevent others from doing so, even if the trademark is not registered with the USPTO. For more information on trademarks, check out the FAQ section on the USPTO website.
The right of publicity is the final area of law you will need to be aware of as a creator. Even though the right of publicity might not technically be an intellectual property right, it is nonetheless lumped in with these for good reason. It arose out of a person’s right to privacy. However, as the law developed over time, it was accepted that in addition to a right to privacy, a person has a right to control how their likeness was exploited for financial gain. The right of publicity allows someone, typically a celebrity, to control how their image or likeness is exploited for commercial purposes. The right of publicity has been adopted in some form in over half of the states. The right differs from state to state and can apply to almost anything that evokes the image, likeness, or persona of a person. Generally speaking from my own experience, the right of publicity is a very broad legal doctrine that can pose serious problems for creators trying to evoke the likeness of a living person or celebrity.
To protect your work, it is best to register it for copyright and, if eligible, trademark protection. If you are uncertain if you should register your work, consult with an attorney. Once registered, it easier to protect your work from infringement by others. However, protecting your work from infringement, especially online, can be a daunting and frustrating task.
Discussing ways to avoid being sued over intellectual property is too long for this post. I will say, however, the best way to avoid being sued is to not use an image, logo, or likeness you do not own or do not have permission to use.
On a final note, I would like to encourage you to seek legal help if you need it. Shop around for attorneys, and don’t be afraid to negotiate. More often than not, attorneys want to help you. If you think you cannot afford an attorney, seek out pro bono services such as Lawyers for the Creative Arts, Volunteer Lawyers and Accountants for the Arts, or similar services. Also, use the resources on this site to better inform yourself, check out my blog at ComicsLawyer.com, or pick up my book, Comics Startup 101: Key Legal and Business Issues for Comic Book Creators.