Today’s Wall Street Journal has a lengthy feature article on the popularity of Donald Duck in Germany. One indication that the character has become a cultural phenomenon: an 8000 page German collector’s edition, priced at $1900, came close to selling out upon publication.

The article ascribes the character’s popularity to the strip’s longtime translator, Erika Fuchs, an art history Ph.D. who rewrote Carl Barks’ dialogue to include references to German literature, myth and politics. This is no doubt part of the reason why the strip has inspired an eponymous nonprofit organization, D.O.N.A.L.D., to hold annual scholarly gatherings for the past thirty-two years, but as at least one commenter notes, Barks himself seeded his work with historical and literary references. Surely Barks made a difference as well?

He did, of course–the mythic quality of his Duck work is what made it such a suitable foundation for Fuchs’ elaboration. But the difference in tone is worth noting. Post-war Germany was in the process of restoring its identity after Nazi ideology raised serious questions as to the legitimacy of the country’s cultural heritage. A funny book provided a means for Fuchs to highlight the value of German traditions free from worrisome evocations of the Nazi’s use of German culture to establish ethnic supremacy.

Barks wrote in a radically different context. America’s literary heritage was not morally suspect; to have used Donald Duck to legitimize Melville or Dickinson would have seemed pretentious, if not bizarre. Barks’ visual and verbal rhetoric is instead far more pragmatic–Donald and his retinue are on a perpetual quest to succeed in a world full of baffling new tools and old ways.

What both the German and American versions of Barks’ work illustrate is the strategic value of junk media in remaking society. That so many people continue to view comics as little more than trash is not necessarily a bad thing–it frees the medium for creative expression outside the normative constraints of so-called high art, thereby retaining comics’ power as a cultural trojan horse.

Journalista & The Beat provide an interesting link this morning to a site that includes a detailed critique of the local lawyers, including an allegation that Handley was not informed by his lawyers that he was pleading guilty to a child obscenity count that could lead to prison time. This strikes me as somewhat unlikely, given that Handley is on record as expressly pleading guilty to the child obscenity statute that has long been the central public issue in the case.

Still, there are several lessons here for retailers and readers of sexually explicit comics material.

Know your environment. Whether one likes it or not, the fact is that child obscenity cases are an easy way for prosecutors to get the sort of publicity that can help them advance in their careers. Relying on the popular belief that current law is clearly unconstitutional is a rather risky proposition. That you personally don’t believe minefields should be legal doesn’t make them any less explosive.

Know your material. If there’s a chance someone could perceive your material as containing sexually explicit images of teenagers or below, you’re potentially at risk. This is particularly true with manga, which has a robust tradition of childlike imagery.

However, the realpolitik of local juries makes even literary comics a risky proposition. For example, I could easily see a local prosecutor arguing that Alan Moore’s Lost Girls is merely a prurient perversion of childhood characters with no redeeming value. Yes, a scholar may argue against this, but the audience that counts is the jury, not the academy.

Know your case. Let’s assume for the sake of argument that Handley did indeed not know the charge or the potential sentence when he copped the plea. If you, god forbid, ever find yourself in a similar position, I strongly recommend that you take a few minutes to read the documents you’re signing.

If you’re unfamiliar with a statute, look it up; if you’re not sure of the potential penalty, look that up too. If something’s not clear, ask, and if you might face jail time, consider paying for a second opinion or at least ask trying to ask the judge for clarification. It’s also wise in such situations to hold back from signing an agreement without an understanding–if at all possible, expressly stated in writing–of the sentence that the prosecutor is going to recommend.

On the flip side, it’s also useful to remember that a prosecutorial press release is designed to make the prosecutor’s side look tough on crime. A public reference to the maximum possible penalty does not mean that this is the sentence the prosecutor will request or the defendant will receive.

Again, my aim in all of this is merely to explain the situation, not to endorse it. There’s a significant gap between what many think ought to be the law and what the legal reality actually is. In the United States freedom of the press is not an absolute–if you read, sell or distribute material that could be seen as containing sexually explicit images of minors, you might want to consider how much you’re personally willing to risk.

Yesterday Newsarama reported the CBLDF’s announcement that “Christopher Handley, the Iowa manga collector, has pleaded guilty ‘to possessing obscene visual representations of the sexual abuse of children and mailing obscene material.’” This development has understandably raised questions as to significance of the Handley case as legal precedent. In addition, it has also given rise to speculation as to whether the anti-censorship cause would have been better served if the CBLDF–as opposed to Handley’s local lawyers–had been in control of the case.

Below the jump: my thoughts.

(more…)

Craig Yoe has announced the imminent publication of a special limited edition of Secret Identity: The Fetish Art of Superman’s Co-Creator Joe Shuster. This limited release will include a substantial amount of material not included in the standard release, such as a bookplate signed by Yoe and Stan Lee, a facsimile of a letter to Yoe from Shuster’s sister, and sixteen pages of additional Shuster artwork deemed too hot for bookstores.

This new material only reinforces Secret Identity’s importance as one of the most revelatory works of comics scholarship in recent memory. As Yoe observes, the comic book witch hunts of the 1950s might have had a far more severe outcome if Dr. Frederic Wertham had made the connection between Superman comics and Nights of Horror, the Shuster-illustrated fetish magazine that had become notorious thanks to its alleged role in inspiring the Brooklyn Thrill Killers in 1954.

Ironically, the very unwillingness of comic book critics to take the medium seriously as an art form kept them from seeing the evidence that was literally right before their eyes. Were they not so willfully ignorant about the distinquishing qualities of comic book artists, Shuster’s work would likely have become the missing link between superhero comics and teenage depravity.

In the interests of full disclosure I should note that I did play a small role in locating some legal material for the book, but my contribution was at best minuscule. The book’s real value comes from the stunning art and Yoe’s compelling historical introduction, which reads like a Beat-poet jazz riff inspired by the era it describes.

Below the jump are a few of my own reflections on Secret Identity and its significance for obscenity law and contemporary culture. Some of the references may seem unfamiliar if you haven’t read the book, so I strongly recommend that you get a copy for yourself!

(more…)

A certain DC Comics character is coming back from the great beyond, and if my inbox is any indication a lot of you are wondering how this could have happened.

The answer–or at least a possible explanation–below.

Warning–spoilers ahoy!

(more…)

The Hollywood Reporter has the scoop on a new Watchmen lawsuit, this time arising from the movie’s coffee.

Yes, that’s right–coffee. The makers of Chock Full O’ Nuts have filed a complaint alleging that Warner Bros. and a company owned by Watchmen: Portraits photographer Clay Enos have illegally copied the coffee brand’s can design.

(more…)

Today’s New York Times features an obituary for Ben Blank, a leading innovator in television news graphics. As the obit notes, before Blank, TV news consisted of an anchor, a desk and wall sporting a clock or map. Blank realized that “to pique and retain the viewer’s interest, it was necessary to provide a visual mnemonic that would serve as a logo for the story.” Thus was born the “over-the-shoulder” graphic that has become ubiquitous in video news on both TV and the Web.

While Blank’s contribution to our media culture is noteworthy in itself, what particularly drew my attention was this singular fact: before being hired as a graphic designer for CBS, Blank spent four years as an Air Force cartoonist.

The comics connection is not merely incidental–it reflects how comics and cartoons provided a template for how we communicate today. A single panel gag cartoon, a comic book cover, a splash page: each serves an effective means to convey complex information and to establish an intuitive personal connection. Blank’s genius lay in adapting this design rhetoric across seemingly disparate junk media, to the television from the cartoon.

When we think about the status of comics today, sales stats and museum exhibits are only part of the equation. Small, often invisible shifts like Ben Blank’s–the cartoonist who remakes TV news, comic artists working on Madison Avenue, a novelist who grew up with EC, the comic geek who jumps from commercials to major motion pictures–these are the moments through which comics have come to define modern culture.

Today’s Financial Times has a column on the ethical responsibility of a London banker who received a bonus from a U.S. bank bailed out by taxpayers. There are a number of suggestions–give the bonus back, send it to the government, buy a Porsche–but one reader anecdote suggests that the bailout may also be helping the comics industry:

My husband–whose bonus is mere couple of hundred pounds–spent it on Batman comics and sent them to a children’s ward in New York, which I thought was a really nice touch. Mind you–he’s a good man. If it was my couple of hundred pounds, I would have spent it on shoes.

The judge in the ongoing Superman lawsuit has postponed the upcoming scheduled trials due to “health issues related to one of [the Siegel family's] main expert witnesses.” The trial on the alter ego issue is now set for April 21, 2009; the trial regarding apportionment of profits is set to follow on June 9th.

What better way to end the week than with the official Watchmen settlement documents submitted to the court this morning?

If you read the proposed order of dismissal, you might noticed that the parties are requesting for the case to be dismissed “with prejudice.” That does not mean, as some mistakenly believe, that the court is criticizing the plaintiff for bringing the case. Rather, it’s a legal term of art indicating that the plaintiff is barred from bringing a lawsuit on the same claim–in short, the parties have agreed that this case is over, once and for all.

Of course, there might be a dispute over whether the terms of the settlement are being met. Chances are, if the settlement is true to form, the parties have agreed to have any such dispute resolved through mediation.

The proposed dismissal order needs the judge’s signature, but today’s lighthearted hearing indicates that that is not likely to be a problem.

Though the judge is already anticipating a possible sequel:

“It may be over between the two of you,” said [Judge] Feess, “but who knows what else will show up one day?”

Fox and Warner Bros. have just released official confirmation that they have settled the Watchmen dispute. The following is the companies’ reported joint statement:

Warner Bros. and Twentieth Century Fox have resolved their dispute regarding the rights to the upcoming motion picture Watchmen in a confidential settlement. Warner Bros acknowledges that Fox acted in good faith in bringing its claims, which were asserted prior to the start of principal photography. Fox acknowledges that Warner Bros. acted in good faith in defending against those claims. Warner Bros. and Fox, like all Watchmen fans, look forward with great anticipation to this film’s March 6 release in theatres.

As Nikki Finke reports, the price that Warner Bros. is said to have agreed to pay is substantial: 8.5% of the gross, a percentage of “everything going forward, including a sequel or spinoff,” as well as a substantial cash payment for Fox’s development costs and attorney fees. Industry watchers may want to keep an eye on TimeWarner’s SEC filings for more information–the loss of a substantial amount of Watchmen‘s anticipated profits arguably qualifies as a material fact that the company must disclose to its shareholders.

That the settlement came so quickly after the judge’s summary judgment ruling for Fox should come as no surprise. As I noted earlier, Fox had nothing to lose going forward, while WB could lose everything–and given the recent track record, Warner Bros.’ executives might not exactly be comfortable relying on their lawyers’ assurances of victory. What’s more, the injunction against the manufacturers of Bratz provided a powerful reminder that federal judges in that district could view (alleged) infringement of IP rights as harm substantive enough to warrant shutting down distribution. You don’t have to be a game theorist to see where the incentives lay.

News reports note that Warner Bros. is going to seek reimbursement from film producer Larry Gordon, from whom the rights to the film had ostensibly been purchased. The basis for such a claim would be the indemnification provision referred to in these court filings–in short, an agreement to indemnify is a contractual promise to compensate someone for loss or other harm.

The extent to which Gordon may be obligated to pay for Warner Bros.’ loss depends on a few key circumstances. Read these documents carefully and you’ll note that in the course of its dispute with Warner Bros., Fox argued that Warner Bros. had “actual knowledge” of Fox’s rights when it entered into the indemnification agreement with Gordon. If that’s indeed the case, a court might rule that Gordon does not have to pay, on the grounds that a party should not be allowed to insure itself against its own reckless or willful misconduct. Even if a court does determine that Gordon must indemnify Warner Bros. for its loss, he himself might have insurance or grounds to sue his own lawyers for malpractice.

However, for most fans of the graphic novel, Gordon’s fate is probably not the immediate concern. What matters most: provided the judge approves the proposed settlement, the Watchmen film will indeed be released on March 6.

The Watchmen case is not the only comics-related lawsuit that has been heating up. Lawyers on both sides of the Siegel case have also been filing a number of documents, although without a settlement in sight.

The primary focus of attention for the past few weeks has been the relationship between DC and Warner Bros. In a nutshell, the Siegels allege that the various deals between DC and Warner Bros. do not represent fair market value. Rather, the Siegels claim, because of the close corporate relationship between the two companies DC received substantially less than an unrelated company would have paid–which could affect the amount the Siegels might receive from the apportionment of profits derived from their copyright interest in Superman.

We’ll be covering the specifics in more detail as the case unfolds. For now, for those of who don’t want to wade through several thousand pages of depositions and corporate documents, here’s one interesting bit of history entered into evidence as part of the dispute: unproduced scripts written over the course of developing the latest Superman movie.

Fox and Warner Bros. have asked for a hearing later today to report on a final settlement or to discuss how to proceed in the hearing scheduled for January 20. The filing, available on FilmEsq.com, notes that the studios “are continuing to address a few remaining settlement issues.” It also confirms that settlement negotiations began in late December, a few days after the judge’s decisive December 24 ruling in favor of Fox.

The New York Times’ Michael Cieply reads the body language at last night’s awards ceremony:

From where this reporter sat at the Golden Globes last night, that sure looked like Tom Rothman of Fox and Alan Horn of Warner Brothers down among the superstar seats, smiling and back-patting — each other, not the superstars — just before the show began. A public display of affection between studio chiefs, along with those pricey “Watchmen” ads on the National Football League playoff games this weekend, would add up to a message as big as the Hollywood sign: The talks between hitherto warring Fox and Warner over a settlement of Fox’s lawsuit over rights to “Watchmen” must be on track.

The final fate of the Watchmen movie could be determined next week. Later today–January 7th–Fox and Warner Bros. are scheduled to meet with the judge to discuss the next steps in the case.

As FilmEsq explains in more detail, the parties have agreed that the next proceeding should “be limited to the question of whether Fox is entitled to a permanent injunction” on the film’s distribution. If Fox were to prevail, the film would likely not be released without a settlement or action on appeal. The current date for the next hearing is set for January 20th, but Warner Bros., citing the urgency of resolving the matter, has asked for it to be moved up to next Monday, January 12th.

The question of whether the judge should grant the injunction involves some rather technical points of law. One key factor in the movie’s fate will be the judge’s perception of relative hardship. For example, the judge in the Bratz case recently decided that the harm to the manufacturer was severe enough to warrant modifying the court’s previous order to stop production and sale of the dolls.

For anyone who wants to read both sides’ arguments and their joint stipulation about the scope of future proceedings, here are some of the most relevant documents.

Fans anxious to know whether Watchmen will be released in March as scheduled will have to wait a few weeks. The New York Times is reporting that the judge in the Watchmen case has decided to refrain from ruling on the injunction sought by Fox until after a hearing set for January 20, 2009.

For anyone who wants more details on the judge’s 12/24 ruling, I’ve uploaded a set of documents that includes not just the Christmas Eve order, but both parties’ motions for summary judgment as well as fascinating material filed by Fox just yesterday.

These three rulings in particular provide detailed allegations as to how Warner Brothers got into this mess. In a nutshell, Fox claims that it has evidence that Warner Bros. initially relied on an inaccurate chain of title provided by Paramount. Once Warner Bros. was aware of Fox’s documented claims, it nonetheless decided to proceed in a deliberate “business calculation” that it would be more profitable to deal with a court case than clear the rights before making Watchmen.

Fox’s claim that Warner Bros. has an established “studio practice” of bad faith in clearing title is central to its argument that the court should enjoin Warner Bros. from releasing the film.

Besides these documents, I also recommend checking out Nikki Finke’s Deadline Hollywood Daily and Rodney Perkins’ Film Esq., which provide detailed analysis of the latest developments.

A quick editorial addendum to Jeff’s post: On Monday, Warner Bros. issued a statement about the ruling, saying: “We respectfully but vigorously disagree with the court’s ruling and are exploring all of our appellate options,” the studio said. “We continue to believe that Fox’s claims have no merit and that we will ultimately prevail, whether at trial or in the Court of Appeals. We have no plans to move the release date of the film.”

Fox responded with: “We are gratified by the recognition of our rights in the judge’s order, which speaks for itself.”

Comic book depictions of children engaged in sexually explicit conduct have once again become a major legal issue.

Just a few years ago, the Supreme Court struck down a federal law that “extended the prohibition against child pornography to images that . . . were produced without using any real children.” However, last week, in U.S. v. Whorley, a federal appeals court upheld a 20-year prison term for a man convicted of receiving “Japanese anime-style cartoons of children engaged in explicit sexual conduct with adults.” This follows a lower court case–U.S. v. Handley–in which a judge ruled against a manga collector who argued that indicting him for possession of child porn is unconstitutional. An additional sign of the importance of this issue is that it is not limited to the United States–an Australian court upheld a man’s conviction for possessing sexually explicit Simpsons cartoons.

The flurry of cases has sparked a considerable amount of discussion both online and off. Back in October, the Comic Book Legal Defense Fund announced that it had become a special consultant to the defense of Christopher Handley, the manga collector facing trial for receiving and possessing manga alleged to be child pornography. Neil Gaiman garnered considerable attention for his eloquent post supporting the CBLDF’s decision; citing the First Amendment and the problematic nature of the law as “big blunt instrument,” Gaiman argued the defending the freedom to express what you find reprehensible is a necessary part of defending speech that you like. Others, most notably comics writer Valerie d’Orazio, raised serious questions about whether they could support the CBLDF when it is “fighting for the right of a publisher to print images of little children having sex.”

Is it constitutional to send someone to jail for possessing comics with sexually explicit images of kids? And how should the comics community respond? My thoughts below, after the jump.

(more…)

Just in time for Christmas, a federal judge has ordered MGA Entertainment to stop production and sales of Bratz. It’s a major victory for Mattel and Barbie–a jury had found in favor of Mattel’s claim of copyright infringement, but it was not clear whether this finding applied only to the original Bratz dolls or to the entire line.

This case is relevant to the comics world for several reasons, even if you don’t count Barbie’s multiple marriages to GI Joe and Mego Batman.

At the very least, the Bratz ruling illustrates what’s at risk for a company that builds its brand on a derivative work from someone else’s copyrighted images. Consider the recent discovery that an early Emily the Strange drawing was a clear copy of a character from a children’s book, from the character’s appearance to her cats to the identifying description as “strange.” This could arguably be the smoking gun in a copyright infringement lawsuit–while subsequent images may not have copied the book in such a blatant way, core similarities still remain.

However, there’s an even more direct connection. The judge in Bratz case, the Hon. Stephen G. Larson, is also presiding over the Siegel heirs’ Superman and Superboy lawsuits. Judge Larson’s reasoning in the Bratz ruling may provide clues as to how he will see the relationship between the Superman material in Action Comics #1 and subsequent works. Moreover, the Bratz case also involved the use of Mattel’s copyrighted material in the Bratz trademarks. Although the specific legal issues aren’t exactly the same, it’s possible to infer from the judge’s reasoning that he might be favorably inclined toward the Siegels’ argument that their copyright interest gives them a share of the trademarked Superman “S” symbol.

That said, the Bratz ruling also highlights what I’ve previously referred to as the Achilles’ heel of the March 2008 ruling that awarded the Siegels half of the copyright in the Superman material in Action #1–namely, the similarity between Action #1 and the cover images that appeared in promotional house ads. Due to a technicality, the Siegels’ claim did not extend back to these house ads, but Judge Larson determined the only thing that these ads gave DC was ownership of “the image of a person with extraordinary strength who wears a black and white leotard and cape.” Nonetheless, it’s conceivable–though by no means certain–that a panel of judges hearing the case on appeal might find the similarity to be more substantial.

Of course, this is all speculative reading of judicial tea-leaves–the Superman case and Emily the Strange have their own distinct facts and legal issues. The one thing that is certain: if the MGA injunction is not struck down on appeal or settled out, Bratz must be destroyed.

A recent blog post at Wired reviewed the rather extensive history of the Toho Company’s notorious efforts to protect the Godzilla trademark. Cabzilla, Davezilla, the New Yankees’ unlicensed Godzilla promotion for Hideki Matsui–these are just a few of the references to the Godzilla property that the company has stamped out.

As we’ve discussed here at Blog@, companies have a strong incentive to take aggressive action–if they let infringement go unchallenged, a court may have a legal basis for finding that the trademark has lapsed. This can even occur if the entity appropriating the mark is a charity, which is why comic book publishers have on occasion risked the wrath of fans to shut down an infringing use.

In this regard, the Wired post raises an interesting issue. You don’t have to be a kaiju obsessive to catch the reference to Godzilla in the name of the Mozilla Foundation, the charity that is probably most familiar in connection with the popular Firefox browser. So why hasn’t Toho gone on a rampage?

The Wired piece suggests that Mozilla is different because it does not make a profit, but technically that isn’t accurate. Besides using the Mozilla mark in its fundraising, the Mozilla Foundation has generated considerable revenue, including millions of dollars in profit, from its search deal with Google. In fact, for the past several years the Foundation has delegated its major commercial operations to the Mozilla Corporation, a separate taxable subsidiary.

Perhaps Toho, like any number of other trademark holders, is balancing its trademark interests with concern for bad PR, but I’m not sure that’s the case. A New York Times article from 2002 offers this revealing piece of inside information:

[A] person within Mozilla, who said he could not be quoted because of confidentiality agreements, said that the organization had already worked out a deal with Toho that allows it to keep using the name.

As with the Transformers, there may be more to Mozilla’s trademark situation than meets the eye.

The final calendar for the Superman case has been set.

The judge has divided the remaining issues into two separate trials. Because of the specific legal questions involved, neither will be a jury trial. Instead, the judge will issue the final determinations on his own.

On Jan. 12, 2009, the issue at stake will be the Siegels’ claim that DC Comics, Warner Bros., Time Warner and other companies connected to the Superman properties are alter egos. That is, the Siegels are arguing that these companies are so intertwined that they are essentially one and the same. The primary reason a plaintiff files an alter-ego claim is to reach the assets of separate entities that would otherwise not be required to pay. For example, if DC could not pay the full amount of its debt and the court deemed Warner Bros. and Time Warner to be its alter egos, the Siegels could collect the remaining amount from those other companies.

As for any amounts the Siegels may be owed from exploitation of the material in Action Comics #1, the date set for trial in regard to accounting of profits is March 24, 2009.

Of course, the dispute between the Siegels and DC (et al.) is not necessarily over even after the court issues its decisions, as an appeal is a distinct possibility. In addition, the court might also schedule a trial for any remaining issues in the Superboy case.