Major Spoilers Podcast 413

In this issue: The show stars with some talk about Young Justice and The Legend of Kora, but turns to a discussion of what a company might do with their characters from the multiverse.

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Robot Overlord

Robot Overlord

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4 Comments

  1. May 26, 2012 at 3:22 pm — Reply

    I have yet to find evidence of a collected Jingle Jangle Tales and/or The Pie-Faced Prince by George L. Carlson. I would buy that in a heartbeat.

  2. Xian
    May 26, 2012 at 10:52 pm — Reply

    License agreements are more heavily influenced by contract law than IP law, but ultimately they need to be mutually beneficial to be justifiable and, in general, licensing within the same medium as your active business is not justifiable (the big exception is cross licensing in technology where the purpose, typically, is to avoid patent disputes).

    From the licensor’s perspective, yes, you will get paid for the license, but you need to be paid equal to or more than what you would be able to accomplish on your own with the property to justify giving out your property. Even if you’re getting paid, you also need to protect the value of your property and your business… so you need controls on what the licensee can do, specific parameters for what they’re licensing, non-compete agreements both with current business and future business, indemnity in case your licensee gets into trouble with your property, quality control measures, and ways to audit / account / enforce all these agreed upon terms and conditions, and so on. All of this means a lot of overhead, lawyers, costs, unintended consequences (not having a license revert when you expected it to, being sued someone contesting ownership of the underlying property, accounting for the actual worth, realizing you’ve forfeited something to the public domain, etc) and complexity that tends to be unintuitive to the typical lay person just trying to create content. From the licensor’s perspective, you only go to all this trouble to do this if the licensee has the infrastructure to take care of something you can’t handle yourself- so, typically, making a movie or a toy or a game based on your IP.

    In terms of making comics, rather than doing it through a clumsy and expensive license agreement it seems like a lot more sense to simply hire the talent. Here, the talent are far more fungible than the IP. It is far easier to get a specific talent or someone who creates like them and deal with an employer-employee / contractor relationship than it is to parse out whether the terms of the license meant to include Superboy or just Smallville Clark or Medieval Spawn but not Dark Ages Spawn (as we’ve seen long and expensive lawsuits to those ends). And since the good is in your own field, you would have awkward non-compete clauses trying to say things like “Your Earth-32 Superman stories shall not infringe upon our Superman stories”, while at the same time obligating you to defend any infringement on their creations from competitors (if it’s all internal, then that’s already part of the job, but doing it for a third party where you don’t- necessarily- have editorial control is a bit weirder and if you license for that much control they why aren’t you simply hiring them instead of doing a license agreement?).

    From the perspective of the licensee, in order to pay for the privilege of using an existing IP (total package: copyright, trademarks, trade dress, good will, etc) you want assurances that your use will be exclusive (recall “Bat Embargos” of the past) so that the value of your license isn’t diminished or preventing you from making a return (ex: Marvel movie licenses prevent Marvel Studios from putting Spidey in the Avengers and siphoning away Sony’s Spidey sales based on the same IP). In the case of shared universe or alternative multiverse characters that benefit would already be compromised. Conventional wisdom is that you’d be boned if you’re trying to put out a quirky alternative semi-indie take on Spidey the same time Marvel is putting out some mega-epic Death Of Spidey Event at the same time (most licensing deals also put some degree of cross-promo obligations but again, why go through a licensing deal when this would already be done in-house?). Beyond that, your access to legal sophistication and resources is going to be asymmetric so for all you know your non-compete clause not only prevents you from using your license now, it forbids you from re-entering mainstream comics with a “similar idea” for the next 3-5 years.

    From a creative standpoint, because copyright has grown so long and strong over the years, the law has necessarily evolved to allow for many exceptions and carve outs to lessen the monopolistic effect. So, for example, Captain Marvel was once seen as infringing on Superman (and DC won that case), but if it were tried again today under modern copyright law DC would almost certainly lose… which means if you simply want to use a concept of a pre-existing IP, as long as you take some precautions, you have almost unfettered ability to tell your own- but similar- story with your own creator-owned characters and reach the same creative goals. Most will know your character is a stand in for Superman, Batman, the Avengers, or what not. Millar, Waid, and Kirkman do quite well off of derived archetypes.

    Economically, for the licensee, you’d already be taking a hit paying the licensor in order to use the property… well, the other- more conventional way about going about that- is to WORK for the licensor. Sure, it’s no longer creator owned, but now instead of paying for the privilege of using the popular character, you take a theoretical pay cut (compared to creator owned) and in the meantime instead of licensing for cross-promotion and advertising you simply get the benefit of being a name on one of their established properties- goodwill you’re permitted to convert into your own IP without specifically contracting for it. And, of course, employment contracts are a little more intuitive and streamlined than licensing agreements, so (whether advisable or not) you’re probably not going to have to deal with the overhead of a lawyer to simply get hired whereas you’re crazy to not have one if you’re going into a licensing agreement.

    So again, licensing generally only makes sense if you lack the capability of doing it yourself… if you’re in the business, already have all the infrastructure in place and the talent in play, adding the expense and complexity of licensing is tough to justify against simply entering into a contract / hire agreement.

  3. shamon
    May 26, 2012 at 11:01 pm — Reply

    as always great podcast

  4. Brian
    May 28, 2012 at 12:27 pm — Reply

    Hey Matthew, I found this old box of magazines in my garage. Eight or nine of the Marvel Epic magazine, earliest one dated “Winter 1980” two Deadly Hands of Kung Fu (#19 and #24), and one Marvel Preview #11. None of them are bagged or boarded, and the Preview in not in good condition, although it is readable. I think you mentioned you were looking to read some of these, if so I’ll loan ’em to ya. They’re more keepsakes of my late youth than collectables to me so I’m not wanting to sell them. (not that they’re in any condition to make me money).

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