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.

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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.

Charities have realized that comics characters are an effective way to get money and attention, but for every authorized use — such as the Met’s superhero fashion exhibit or Diane von Furstenberg’s Wonder Woman collection — there are countless other examples of charities using comic-book icons without permission. Every so often, a publisher clamps down on one of these initiatives–and their reward is typically negative press. Just this month, for example, DC Comics was criticized for not giving the Heroes Initiative permission to include pictures of DC properties in The 3-Minute Sketchbook.

Singling out DC is a bit unfair — Marvel has had its own share of charitable controversy, and DC has allowed its characters to be used for other charitable projects — but the broader question raised by such incidents is not unreasonable. After all, if the money is going to a charity, why shouldn’t a publisher just let its characters help a good cause?

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Today the judge in the Siegel case is holding a status conference to set the “FINAL and DEFINITIVE schedule” for the trial. The judge’s all-caps emphasis may seem a bit unusual for a routine scheduling order, but it’s a visceral reaction to the twists and turns the case has taken since the calendar was originally set back in April.

A lot of it is legal wrangling that we’ll set aside for another time, but one issue is particularly relevant to readers of this site — because that issue arose from one of our most recent posts.

The post in question was from late August, and it revealed previously unknown artwork and scripts from the 1934 collaboration between Jerry Siegel and Russell Keaton. As Siegel lawyer Marc Toberoff explains in a court filing:

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The House of Representatives has adjourned–for now–and unless the Clerk was asleep at the keyboard the so-called orphan works bill did not pass.

That means the bill is dead and gone, right?

Not really.

If we’ve learned anything from reading comics, nothing is dead unless we see a corpse–and even then, chances are the deceased will eventually come back to life. Law is much the same way. Since there has been so much confusion about the state of the bill over the past few days, here’s a brief explanation of what happened this week and what it means for the future.

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The artistic community is buzzing over news that the Senate has passed its version of the orphan works bill.

And for good reason. The legislation will significantly change the incentive structure in copyright enforcement.

As I discussed in a previous post, the legislation’s stated aim is to clarify the status of so-called orphan works–old copyrighted material whose rights owners cannot be located. The typical example cited to justify the bill is something old with a personal or educational value, such as a family photograph or a historic archive.

But what matters most is not the ideal application but the actual language, and this is what has so many people concerned.

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In a comment on the Russell Keaton post, Denis Kitchen — whose contributions to the comics community are many and invaluable — expressed his dismay over the publication of copyrighted material with what he considered to be an inaccurate account of their discovery. In this post, I’d like to provide a more in-depth explanation of the documents’ backstory and the legality of republishing them.

Copyright: These documents are part of the official public court record for the Siegels’ Superman case. In fact, the lawyer who made them part of the public record was the Siegels’ lawyer, Marc Toberoff, who certified their authenticity and filed them with the court. U.S. law has long recognized that the First Amendment protects the reproduction of material placed on the public record in connection with a federal court proceeding.

In regard to co-ownership of the material by the Siegel and Keaton estates, Kitchen notes that the Siegels’ lawyer vetoed the publication of a book collecting the material. However, even if the documents had not been made part of the court record, the Keaton estate arguably has a legal basis for going forward with the collection. As the recent Superman court decision reiterates, joint owners of copyrighted material each have the right to exploit it independent of each other, though they are required to share the profits with the other co-owners.

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It’s relatively common knowledge that in 1934 Jerry Siegel approached other artists besides Joe Shuster to be his collaborator on Superman. One of these artists was Russell Keaton, who had been ghosting the Buck Rogers Sunday pages. Siegel and Keaton maintained a brief correspondence over the character, with Keaton eventually deciding “not to gamble on such a young and inexperienced writer.” Instead, a few years later Keaton launched his own newspaper strip, Flyin’ Jenny.

And now, in the words of Paul Harvey, the rest of the story.

In preparing the termination notice to regain the Superman copyright, the Siegel family found a box of old Superman material, catalogued its contents–and then, in a move, lost track of it. Fortunately, the material was re-discovered in April of last year.

Among the documents: photostats of the scripts and artwork of Siegel and Keaton’s Superman.

That’s right, Siegel and Keaton.

As Jerry Siegel would later explain, in 1934 Joe Shuster had become discouraged with the Superman newspaper strip and decided to let it go. His departure prompted Siegel to look for a replacement, so he sent an inquiry to Keaton. Which we have in these rediscovered documents in Siegel’s follow-up letter outlining the origin story and touting the prospect of selling the strip to the Bell Syndicate.

Based on the surviving artwork, it would appear that Keaton did indeed prepare a set of sample daily strips for the syndicate to review. Had Siegel and Keaton succeeded in selling the strip, the history of comics would no doubt have been far different. At the very least Russell Keaton, not Joe Shuster, would most likely be remembered today as Superman’s co-creator.

The material also provides a decidedly different take on Superman’s origin. In this version, the infant Superman arrives here from the future via a time machine, sent to 1935 by “the last man on earth.” The couple that discovers him: Sam and Molly Kent.

The story then takes a series of fascinating turns in regard to Superman’s childhood, which is the subject of the first extended storyline. Most poignant: in a nod to Siegel’s own immigrant parents, the boy speaks a language that Sam and Molly don’t understand, leading them to speculate that he came from “a foreign country.” The secret of his origin appears to lie in a cryptic “Mystery Note” found in the time capsule, but–as is all too common in immigrant families–when Clark Kent grows up he can no longer read the words.

What this material might mean for the Superman and Superboy lawsuits we’ll discuss in a later post. For now, these historic documents deserve to be read in keeping with Siegel’s original intent–not as the subject of a legal dispute, but as an astounding adventure.