Periscope Depth

I owe my soul to the company store

Scott Kurtz, author of the successful webcomic PVP, has a bug up his nose about comic creators’ rights. It first came to my attention with a weirdly argued post in May, a peevish response to the outcry surrounding Marvel’s neglect of the artists and writers who created The Avengers. Kurtz’s argument, as best I could understand it, was that Jack Kirby wasn’t the only guy behind The Avengers – an argument which nobody had made, an argument which Kurtz rebutted by saying that donating any money to the estates of these impoverished writers and artists was “slacktivism” and “cynical.” My man Leonard demolished these arguments better than I could, so I won’t pick at the ashes.

Kurtz returned to the subject this week, with a post that’s more coherent and thereby more reprehensible. He doesn’t call out any creators or causes this time, as he did with The Avengers in May, but I’d bet a Krispy Kreme this post was inspired by DC’s ongoing battle to wrest undisputed control over the rights to the character of Superman from the estates of Siegel and Shuster. Or maybe he clarified his thoughts and wanted to make them public. Or maybe he just felt like revisiting the old well.

In any case, Kurtz’s new post is a great object lesson in victim-blaming. Victim-blaming is an ugly behavior most commonly associated with racism and sexism (“well, if you hadn’t been in that part of town …”). But Kurtz proves admirably that you don’t need to be racist or sexist to engage in it.

He outlines a scenario in which “[a]n artist is screwed over, usually by a larger entity like a publisher or other corporate entity” and concludes that “[o]nce a creator has allowed themselves to be exploited the battle is already over.” So you have an artist who is presented with a contract by a producer – DC, Random House, Berry Gordy, whomever. The contract’s terms are a little extreme – the rights never revert to the creator; the compensation is an infinitesimal fraction of what the producer will recoup from the product, and the like. Is the artist a fool for signing it? Perhaps. But is the producer a villain for even offering such a contract?

Crickets.

That’s what victim-blaming is: focusing on the choices of the victim, and assigning culpability to them, while treating the choices of the aggressor as a given. Kurtz does this expressly: “Publishers [...] are businesses who survive when they maximize profits and minimize costs.” The contract came from a business: a faceless mass of suits and desks and fax machines. It fell from the sky pristine. It wasn’t written by an actual human being – a person who needs just as much air and food and shelter as Jack Kirby did, and yet earned significantly more of it by structuring a lopsided deal. You know: that’s just the way these contracts are.


Not only is Kurtz’s viewpoint wrong – the producer is just as much an actor as the artist is, and is therefore just as damned for drafting a shitty contract as the artist is for signing it – but it’s ugly. He’s hearing the grievances of men who’ve been discarded by the companies they trusted and he’s not saying, “That ain’t my problem.” He’s saying, “That’s precisely what you deserve.” He’s siding with the great against the powerless. That’s a tone from which nothing good ever emerges, save “the laugh in triumph over a defeated foe.” That there’s an audience for this sort of shit worries me.

Now, I don’t think Kurtz is doing this to be spiteful or oppressive. Kurtz has an opinion on creators’ rights that comes from succeeding in the digital age. As a successful webcomic creator, he’s never had to put himself in hock to give his wares an audience. Kurtz is smart, talented, and lucky. As such, he’s guilty of the blindness that many smart and talented people share: presuming that anyone who isn’t as successful wasn’t as smart or talented. He’s right that signing away all your rights to a publisher is not the route to fortune. But there are thousands of other failed artists who would swear that trying to go it alone on a webcomic, relying on nothing more than a Wacom tablet and a dream, is not the route to fortune either! Just because Kurtz got it right, in other words, does not mean Kirby got it wrong.

Let me go one further: as a writer, I had the choice to solicit representation and publication for Too Close to Miss, or to publish it myself. I went the latter route. The experiment’s too early to call it a success or failure yet, but I’m happy with the results and I stuck with it for the second book in the series. I avoided signing my birthright away for a mess of pottage.

However, if I learned of a writer who was in poor straits, who had signed a contract granting her measly royalties, withholding the rights to her work until the publisher decided to be quit of them, and even claiming rights to publish the work in any formats that had yet to be invented forty years in the future, my first reaction would be sympathy. As a writer, how could it be otherwise? Even if I thought that the company she dealt with had acted fairly, the least I could do would be to say, “Wow. That sucks. I’m sorry that’s happening to you.” To cross my arms and sneer that she deserved it would make me an asshole without peer.

Kurtz closes his post by declaring, “As long as there are artists, there will be entities looking to exploit them. It’s your choice to allow them.” While this is true, it’s also the publisher’s choice to exploit them. It’s possible to make a healthy profit in this country without screwing over the people who work for you – but not so long as attitudes like this prevail.

13 thoughts on “I owe my soul to the company store

  1. Charlie E/N

    Thank you for the insightful article. This is a topic that’s been playing on my mind for a good amount of this year, as I keep hearing a lot of weird blindness when it comes to the morals of a business. When something like Before Watchmen or the sixteenth ongoing Wolverine comic comes out, the audience say, “oh well, they’re a business and they’re there to make money.” The same goes for actions like exploiting Siegel, Shuster, Kirby, Moore and several others besides. It’s like being a corporate entity who acquire properties and capitalise on them makes them morally-neutral, beyond our petty human greed and desires.
    You’re quite right that there’s a strange blockage going on when people blame Moore and Gibbons (for instance) for letting themselves get abused and not being wealthy or savvy enough in copyright law, compared to say, creativity.
    As much as work for a major company is a work for hire gig, it feels a lot more like it’s being treated as a factory line, with creators making content for others to benefit from, and somehow that’s the way it should be. Weird.
    Again, thanks for the article.

  2. Leonard

    So, for Kurtz, creators are like the folks who got suckered into buying toxic mortgages on houses, and publishers are the blameless banks who sold them. Hey, they signed the contract; who cares if it was incomprehensible or rigged? It’s their fault for wanting to live in a house.

  3. Perich Post author

    Leonard: This guileless “welp, they SIGNED THE CONTRACT” response has nagged me more and more since 2008. I’ve written about it before in the context of student loans: someone who gets an MFA in puppetry may have made a poor life choice, but doesn’t that make the person who offers an MFA in puppetry a villain?

  4. Pasquin

    I’m with Kurtz on this one.

    Making the victim-blaming comparison is apples to aardvarks. One may be construed as having limited culpability in choosing the wrong side of town, but absolute culpability signing a clear contract in black and white.

    After the fact trying to renegotiate a contract is of questionable morality at best. It reminds me of those interns at HuffPo trying to retroactively get paid for a job that was clearly unpaid and gave them access to publishing insiders and skills.

    To turn your argument around, Marvel and DC did nothing that an in-demand artist wouldn’t do: Negotiate a fat contract.

    Pasquin
    Read my libertarian novel TEN RALLIES today: http://ow.ly/e7frK

  5. Perich Post author

    but absolute culpability signing a clear contract in black and white.

    I’ll save myself the effort of delimiting the exact terms of the contract that Jack Kirby had to sign in the 70s (David Brothers goes into it here), since I think your response would be to cross your arms and say, “So?” But I will ask: is there any contract that it would be wrong for a producer to offer, so long as the recipient signs it?

    (Also, not to play inside baseball, but you own your own business, so to see you talk about “clear contract[s] in black and white” is a bit dismaying. You’ve seen what work-for-hire agreements look like! C’mon!)

    But all of that’s throat-clearing for what I think is the damning point. The libertarian case for contracts supposes that both parties enter the agreement as fully-informed equals, trading value for value, and that the contract is merely a seal on that equal exchange. But one side writes the contract, and that side typically has a much bigger legal team and deeper pockets for court fees. To start from a position that the contract is sacred is to defer to one side – the more powerful side – by default in every disagreement. That’s not a system of free exchange between equals. That’s a system that genuflects to capital.

  6. Perich Post author

    Also:

    After the fact trying to renegotiate a contract is of questionable morality at best.

    Excellent – you side with Jack Kirby against Marvel, then. Sorry for the confusion.

  7. Brian Martinez

    but doesn’t that make the person who offers an MFA in puppetry a villain?

    Uh…no? This isn’t a trick question, right? Why is it suddenly evil to offer a service or product to someone on mutually agreed-upon terms?

    One could argue that the bank making a loan to someone pursuing an MFA in puppetry is also making a poor choice, and shouldn’t be shocked when the debtor is unable to pay it back due to a lack of income. But that doesn’t make them evil, nor does it make them evil when they attempt to collect on the loan or otherwise seek to enforce the terms of a contract.

  8. Perich Post author

    Brian: So, in libertarian case law, is there any such thing as a contract whose terms render the contract itself moot? Or does the existence of two signatures on the last page render every contract fair?

  9. Brian Martinez

    is there any such thing as a contract whose terms render the contract itself moot?

    It depends on whether the terms are enforceable.

    There isn’t a clear agreement on this; some argue that alienability is possible, thus one can sell oneself into slavery. I disagree because I don’t believe it’t ultimately enforceable.

    Generally I’m with Rothbard that contracts are based entirely on property rights, so if something isn’t severable as property (like your body) then it isn’t transferable and thus isn’t enforceable. But those are pretty narrow exceptions.

    Even in contracts involving the creation of intellectual property (which IMO presents its own set of problems), the creator is agreeing to provide work to the publisher based on mutually-agreed-upon terms. It is not incumbent on the publisher to be “fair” (whatever that means — who gets to decide this?), nor is it incumbent on the creator to accept the deal. To suggest that either side is “evil” for merely negotiating a contract, and expecting its terms to be met, then all voluntary economic exchange must be “evil”. I can’t believe that this is what you’re arguing.

  10. Perich Post author

    So libertarian case law doesn’t recognize contracts of adhesion? Contracts signed under duress? Or even contracts whose terms are so broad as to be unenforceable?

    To give an example: an employee of a company (drawing a regular paycheck) leaves the company, but continues to work for them as a freelancer (drawing paychecks based on royalties). The work he does for them as a freelancer involves a product that he designed for them as an employee. Under both the terms of his original employment contract and the law at the time, all rights to the product should revert to him in about twenty years. As such, the company inserts an addendum into his paychecks, signifying that by signing the paycheck, he reverts all rights to the product back to the company. But he doesn’t have to sign that addendum! He can stand on principle and simply starve!

    To give another example: an author signs a contract with a publisher, ceding to that publisher the right to print copies of a book. Forty years later, a new form of technology emerges, allowing users to experience the story the author created in a format other than that of a book. The author releases the story in this new format. The company then sues the author, claiming that she signed over to them all rights to the story in all forms, even formats that had not been invented at the time. I suppose this is just her own damn fault for not being smarter or having greater foresight than the entire publishing industry, right?

  11. Perich Post author

    Also:

    It is not incumbent on the publisher to be “fair” (whatever that means — who gets to decide this?)

    … the same people who decide whether any contract is fair: judges and juries.

  12. Brian Martinez

    Maybe the company just refuses to pay you at all. Now what? You’d still be out that money, while taking action against them for breach of contract.

    If they try to change the terms to something not originally agreed to, you have to refuse the change, and NOT GIVE UP YOUR RIGHTS. I don’t know how this would be any different in any legal system that doesn’t use a gun to adjudicate disputes.

    What do you want? To send in the Contract Police? Yes, publishing companies can be shitheads, and for that reason a lot of authors like yourself have opted not to deal with them. If this is all you’re saying, then I guess we’re in agreement, but your argument makes me think you find something intrinsically immoral about the market system which allows such injustices to take place.

    I’d say it’s because creators (and publishers) rely on the state to enforce intellectual property rights, but I suppose that’s another discussion…

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