Last week when I said that I wouldn't be doing con sketches of copyrighted characters, I had no idea that the news would get the coverage that it did. But seeing as how I helped poke the hornet's nest--and having taken the time to read the opinions of readers and other artists--I feel like it would be helpful if I responded to help clarify what's been happening.
First off, I think that what happened regarding this issue highlighted the BEST of our industry. I'm thrilled with the results, although I don't find Marvel's statement reassuring (more on that later). When we learned that Marvel was pursuing the $17,000 from Friedrich, we came together as concerned professionals and fans and managed to affect the situation. Even though we disagreed, at least we weighed out the options. And we even came together to set up funding to help out Friedrich. With the use of Twitter, blogging, and proper action from the media outlets, we all handled this very well. We showed such clamor for the situation, we even prompted Marvel to address the situation publicly.
Again, I think it was a good week for our industry. And I think we should stand tall.
When I made my statement, it wasn't meant to spread fear. It was mostly meant to pass along the possible legal ramifications of doing con sketches. I hate to bring down the party, but clearly the issue is in a legal "gray" area. Read the fine print of copyright law: even if you're not making money, you could still get into trouble. So everyone reading this has to make their own choice on what to do. If you decide to continue making sketches/prints/sketchbooks of characters owned by Marvel, DC, Dark Horse, Lucasfilm, Capcom, or any other corporation, then you'd better memorize the following statement, because this is essentially what you're saying:
I call it the Artist Alley Accession...
"I understand that sketches/prints/sketch books are in a legal gray area, but I'm going to continue doing them in hopes that the rightful owners of the characters decide to continue looking the other way. The long-standing tradition of convention drawings, and the fact that almost everyone in comics is doing this, IN NO WAY protects me from legal action that a corporation might one day take. If that day comes, I'll pay the price. But for now I'm hoping I'll get away with it because I feel it would be silly for a corporation to ruin the fun of convention sketching."
While I was thrilled that Marvel addressed this issue, it doesn't change anything for me. The CBR question addressed the drawing of Spider-Man--it would have been easy for Marvel to say, "We won't come after anyone for making a con sketch of Spider-Man," but they didn't exactly say that. They said that they weren't making any new policy announcements, and that they were glad that people could get sketches from their favorite Marvel artists. To me, that statement is purposefully vague. You might think I'm splitting hairs, but I think there was a reason why Marvel didn't say that the sketches could be SPECIFICALLY of Marvel characters. If they gave the green light like that, then they'd lose ground in the future if there ever was another lawsuit.
Last year I drew the Wolverine ABCs. When it was done, I printed out around 200 sketchbooks of them to hand out to industry friends. I knew enough about copyright law to know that I was in the gray area, even though they were only meant to be given away as gifts. I also gave them to people and editors who worked at Marvel--clearly I wasn't trying to hide what I'd created. Because I was a pro and because I wasn't selling them, I figured I'd be fine. After three conventions of EVERYONE telling me I should sell them, I broke down and sold some. At the last show that season, I sold the remaining 40 copies or so.
Then Marvel called. I explained that I didn't have a warehouse of sketchbooks, I only made around 200 (or close to that) and mostly I gave them away. I explained how none of the Marvel editors complained when I handed them one, and my lack of hiding the ABCs should show the innocent nature of my endeavor. I even offered to sign a Cease and Desist, and pay them the money I made selling the last 40. But Marvel wanted the rights to the ABCs--they wanted to own them and pay me nothing. I wasn't willing to do that, so I got a lawyer. And we eventually came together and agreed to drop the subject if I simply removed them from my site and promised not to make any more sketchbooks.
I was in the wrong. I really can't be angry at Marvel for their actions. They were in the right, even though some things at conventions are tolerated, it's still technically wrong. My mistake was being a higher-profile artist and making a themed book out of Marvel characters. I was surprised that it led to the threat of legal action, but it's not my call to make. I apologized to Marvel up and down, and I still feel incredibly stupid for what I did.
To be clear, I support Marvel's decision and I'm happy we worked out an arrangement. I bear them no ill will, and am only telling this story to outline the rights of both the creator and the corporation. I'm not trying to be provocative, only trying to help illustrate what creators need to do to protect themselves. Because I honestly believe that corporations don't want to go after creators, because it makes them the bad guy. Which they're often not.
My mistake was thinking that it was no big deal ... because most people in comics don't think it's a big deal. But most people haven't dealt with Marvel like I have, and that's what fueled my involvement in this entire issue.
I know people think I'm overreacting--I don't care. And I don't care if the industry standard is to keep making sketches/prints/sketchbooks, and I don't care if people keep getting away with it. I don't follow the "wink-wink industry rules" that exist in artists alley. I follow my own rules, and in this case I'm siding with copyright law. I'm siding with Marvel, DC, or any corporation who was the right to protect its interests. Marvel and DC should love that someone is making this statement, and out of his own free will.
I'm changing my sketch policy because I'm imagining the worst-case scenario, I know. In my mind, even DC could trace my sketch history of Batman drawings (a lawyer taking a quick look at Comic Art Fans would reveal the evidence), figure out what I might have charged, and take me to court. Or simply show me the information, threaten a lawsuit, and then get me to agree to lessen my DC page rate in exchange for not getting into trouble. Silly, I know. Unlikely, I know. I make the joke because I know the people at DC who will be reading this, and I know they have senses of humor and would never do that. But what if in 10 years their replacements read this and say, "Murphy's onto something, we should TOTALLY do that!" Then I'll be more protected for only drawing my own characters.
Obviously, sketching isn't going to stop. I know my stance is extreme, and I'm likely standing in a crowd of one. And I'm not judging people who continue their sketch behavior--some of my friends don't agree with on this as well. The income generated from commissions helps pay the bills, especially for younger guys just starting out, so keep doing them. And art blogs like the Twart should keep doing them as well; the stuff always helps generate interest in comics. I don't want to imagine a convention without Spider-Man sketches, so I hope it doesn't stop. I just can't bring myself to participate anymore.
I'm going to investigate getting a waiver from DC--maybe I'll find a legal solution to all this. I'm going into DC next week so maybe I'll find a way to bring it up.