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February 18, 2012
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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.
  • Listening to: Charlie Rose
  • Reading: Trotsky
  • Watching: Top Gear UK
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:iconslaykatart:
SlayKatArt Featured By Owner Mar 10, 2014  Student Filmographer
I know this is an older journal entry, but thank you for writing this. What is the situation with selling prints at conventions like nowadays? A friend of mine said at one time you could get a limited license from DC, but not Disney/Marvel. Has that changed?
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:iconherogear:
HeroGear Featured By Owner Nov 7, 2012
Good read - makes me think about the practice a lot differently.

As having fan art that's not sold, and usually as a form of storytelling of the culture itself, I wonder what else I could do to limit encroachment, but still talk about my love for those things. It's good to read something like this though, before being involved in conventions or artist alleys, so that I have a new perspective on what I could/should be working on at those events.

Thanks!
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:iconsalvador-raga:
Salvador-Raga Featured By Owner Jun 26, 2012  Professional General Artist
Translation in spanish [link] (sorry for the delay)
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:iconseangordonmurphy:
seangordonmurphy Featured By Owner Jun 26, 2012
Thanks! I'll tweet it.
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:iconstevegoad:
stevegoad Featured By Owner May 7, 2012  Professional General Artist
Thanks for posting this, people need to hear this more. I enjoy the Marvel and DC characters and would love to create art prints of them but I always stick to just fan art because I know it isn't a good idea. I constantly see artists and I mean a TON of artists with full galleries selling prints of these characters and I always struggle with the idea "Well they're doing it, why can't I?" But the thing that stops me is what if I had made these characters or came up with an original idea and a ton of people were basically taking what I had created and profiting from it. I don't care how you sugar coat it, stealing is stealing. If I was to do nothing but Marvel and DC characters as art prints, then I can't really complain when people steal my work or if I'm brought to court can I? :)

I sold some shirts of a North Texas University one time, I called them to make sure this was OK and they responded all you need to do is purchase a license from us and you should be fine. The fee was 20 dollars. I often wonder why these main stream companies don't offer something like this to their fans, sure you can sell prints of our product but we require a license fee and maybe a percentage of your sales. Just a thought..
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:iconjdoem:
jdoem Featured By Owner Apr 5, 2012   Traditional Artist
I asked an artist this question a few months ago but never got an answer; now I know. This really needs to be a more widespread journal so people can see it's not some little thing.

Thanks for sharing your experience/pain.
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:iconmarceloperalta:
marceloperalta Featured By Owner Apr 5, 2012  Professional General Artist
I wish people at conventions started asking for drawings with no licensed caracthers, just ask the artist to go for it, and make then something new and fresh because they want to apreciate the artist work and not just some caracther. The focus on comission work IMO is supossed to be on the artist craft and not in the subject. In the long run we would all benefit from that point of view and maybe independent books would gain more ground.
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:iconastromchang:
AstromChang Featured By Owner Mar 29, 2012   Digital Artist
makes me mad makes me sad, listen its only ever a good thing, write your own characters and sketch them, to think if I ever break in as a"PRO" n I cant sketch spidey or Batman at a convention for fun n a sum, its a dark day. But YO I got a bunch o characters that I wrote n love just as much as the ones Steve Ditko, Jack Kirby n Stan Lee wrote, maybe they wont have the same commercial pull, but imma still sketch the heck out of em! love Marvel Love DC, but do the people in the leather chairs at those mega corps love em? actions speak.
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:iconpenickart:
PENICKart Featured By Owner Mar 19, 2012  Professional General Artist
I haven't read all the other comments but I'll say this: this has always been the law. Nothing has changed. The reason this all got stirred up is because an artist tried to go after Marvel for ownership of a character. HE'S the one that stirred the hornet's nest and he got stung. It makes sense for Marvel to go after the guy aggressively; it's a way of saying "nobody else get any funny ideas" regarding ownership. Work For Hire, which is how all freelancers work at the big two, means that they own everything they hire you to do. Period. Creating a character for them under those terms has never given the hired freelancer any rights over them.

The big two have turned the other cheek regarding sketches and the like for so many years that it's become a part of the landscape. Yes, it could change at any moment, but it has become sort of an unwritten form of compensation. Comic book artists work as hard if not harder than just about any other commercial artist and (usually) for considerably less pay. Con sketches promote the big two's characters and fuels the love of them. Letting fans get copyrighted art from artists they love is a sort of a win/win for fans and artists, but getting away with doing it has ALWAYS been at the big two's discretion. We have no right to produce work of copyrighted characters. The big two LETS us. And I say big two because that's what everyone worries about, but it's really all the publishers and/or copyright owners, unless it's a creator-owned thing that belongs to you in the first place.

What makes it difficult for the publishers is that it's been allowed to go on for so long. If they were to put a full stop to it they would anger the talent and the fans to a great degree. That might not be a wise thing for them to do. It would certainly put a HUGE damper on conventions, where so much promotion is done. The fans meeting the creators is a big source of fuel for the industry; there are so many other industries where this never really happens so it's a special part of ours.

That being said, I think the companies will allow original art sketches to continue. I think they would, in most cases, allow sketchbooks to continue as well, but it is something that has to be done with a sense of appreciation and thanks to the companies, not with a sense of entitlement.

And one more aspect of this, that really complicates things, is that the more you make a name for yourself the more the big two will notice. And since this is all being allowed to happen by their own graces, the big two can change the rules or act on something whenever they feel it appropriate. That's why it can be so confusing. It's ALL illegal, so they have the right to tighten up or loosen up whenever they want. Joe Blow can get away with doing all sorts of copyrighted material because no one knows who he is and no one really cares, but you, or Adam Hughes, or J. Scott Campbell? When a guy like Campbell purportedly made 80K one year at San Diego ALONE (selling books, sketchbooks, prints and original art of trademarked characters), there's no way the big two aren't going to stand up and take notice. Why do you think he's selling Fairy Tale characters now?

So, yeah, it's a big fat mess but we get away with breaking the law by the copyright holder's graces and nothing else. Can't wait to see how the rest of the conventions this year works out.
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:iconwolvtrune:
Wolvtrune Featured By Owner Mar 14, 2012  Professional Digital Artist
Thank You very much for sharing this
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