Kevin B Madison
Day 273 of a Year of Drawing 2014. Completed cover to accompany the illustrated version of Chadwick Ginther’s short story, A Simple Twist of Fate. #yearofdrawing #thunderroadtrip #thunderroad #chadwickginther #asimpletwistoffate

Day 273 of a Year of Drawing 2014. Completed cover to accompany the illustrated version of Chadwick Ginther’s short story, A Simple Twist of Fate. #yearofdrawing #thunderroadtrip #thunderroad #chadwickginther #asimpletwistoffate

Day 272 of a Year of Drawing 2014. Work in Progress: Colouring the cover to accompany Chadwick Ginther’s short story, A Simple Twist of Fate. #yearofdrawing #thunderroadtrip #thunderroad #chadwickginther #asimpletwistoffate

Day 272 of a Year of Drawing 2014. Work in Progress: Colouring the cover to accompany Chadwick Ginther’s short story, A Simple Twist of Fate. #yearofdrawing #thunderroadtrip #thunderroad #chadwickginther #asimpletwistoffate

Day 271 of a Year of Drawing 2014. Work in Progress: Continuing to ink the cover to accompany Chadwick Ginther’s short story, A Simple Twist of Fate. #yearofdrawing #thunderroadtrip #thunderroad #chadwickginther #asimpletwistoffate

Day 271 of a Year of Drawing 2014. Work in Progress: Continuing to ink the cover to accompany Chadwick Ginther’s short story, A Simple Twist of Fate. #yearofdrawing #thunderroadtrip #thunderroad #chadwickginther #asimpletwistoffate

Day 270 of a Year of Drawing 2014. Work in Progress: Inking the cover to accompany Chadwick Ginther’s short story, A Simple Twist of Fate. #yearofdrawing #thunderroadtrip #thunderroad #chadwickginther #asimpletwistoffate

Day 270 of a Year of Drawing 2014. Work in Progress: Inking the cover to accompany Chadwick Ginther’s short story, A Simple Twist of Fate. #yearofdrawing #thunderroadtrip #thunderroad #chadwickginther #asimpletwistoffate

Day 269 of a Year of Drawing 2014. Work in Progress: Starting on the cover to accompany Chadwick Ginther’s short story, A Simple Twist of Fate. #yearofdrawing #thunderroadtrip #thunderroad #chadwickginther #asimpletwistoffate

Day 269 of a Year of Drawing 2014. Work in Progress: Starting on the cover to accompany Chadwick Ginther’s short story, A Simple Twist of Fate. #yearofdrawing #thunderroadtrip #thunderroad #chadwickginther #asimpletwistoffate

Day 268 of a Year of Drawing 2014. Work in Progress: Colouring another illustration done to accompany Chadwick Ginther’s short story, A Simple Twist of Fate. #yearofdrawing #thunderroadtrip #thunderroad #chadwickginther #asimpletwistoffate

Day 268 of a Year of Drawing 2014. Work in Progress: Colouring another illustration done to accompany Chadwick Ginther’s short story, A Simple Twist of Fate. #yearofdrawing #thunderroadtrip #thunderroad #chadwickginther #asimpletwistoffate

Comics and Copyrights, Part Two

Comics and Copyrights Part Two

Howdy All and Happy Friday!

This week, I will be continuing my discussion of copyrights in comics.  However, before we get going, I need to get an important disclaimer out of the way.

The Obligatory Caveat

The discussion that follows is intended to provide information only and should not be taken, or relied upon, as legal advice of any kind or in any form.  If you have specific questions or concerns relating to copyright, or any other legal issue, I would encourage you to either retain and instruct legal counsel, or avail yourself the legal resources that are available online or in your local area (many of which are free and can be found with Google searches). 

To be clear, by providing the following information, I am not providing you with any specific legal advice as it pertains to your specific circumstances, and I am not your barrister, solicitor, lawyer, and/or attorney (though I am sure you are a lovely person).

Finally, I should note that I am a Canadian lawyer and, as such, the information I will be providing in the coming weeks will be specifically related to how copyright is recognized and protected in Canada.  Much of this will be applicable to US or UK law as well, but it should not be relied upon as gospel for how copyrights are recognized and protected in those jurisdictions (for instance, the registration of a copyright in the US gives you access to certain court costs that would otherwise be unavailable to you, while in Canada you are not required to register a copyright in order to get costs at trial). 

Ok, with that bit of tuchus-concealment out of the way, let’s get back to talking about copyright.

Derivative Works

Canadian copyright law recognizes that there are certain works which, themselves, are composed, in part, of other underlying works.  Such works are considered ‘derivative works’ by copyright law and they can best be pictured as being similar to Russian ‘nesting dolls’, with each doll enjoying its own copyright protection, while simultaneously including the independent copyright protection of the next doll within.

In the context of a completed comic book created by a team consisting of a writer, a penciller, an inker, a colourist, and a letterer, the comic necessarily includes, as underlying works, the script, the pencil art, the inked pencils, the coloured work, and the narration, dialogue, and sound effects, each of which enjoys independent copyright protection (unless there is an express agreement to the contrary).     

I will be discussing the ‘bundle’ of rights enjoyed by copyright holders next week (what you can do with your copyright), but for now, it may be helpful to note some of these, so as to demonstrate the specific complications that can come from derivative works. 

In the case of artistic works (which includes “drawings” and “paintings”), collective works (which includes newspapers, magazines, and “similar periodicals”), and books (a “volume in printed form”), copyright holders have “the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever.”  

As such, any derivative works that would be considered artistic works, collective works, or books by the Copyright Act, which are made without the consent of the author of the underlying works, may infringe the rights of the underlying work’s author. 

A further complication to the issue of rights in derivative works comes from the fact that the Copyright Act does not expressly refer to derivative works, nor distinguish the rights associated with derivative works from those associated with other works. 

As such, the Canadian courts have “generally given protection to derivative works in their own right, so long as the originality required by the [Copyright Act] is present.  

Let’s take an example to explain how this works, in practice.

My friend, Albert, has come to me with a story he has written that he would like to see drawn as a comic.  I take Albert’s written story to my friend Beth, who adapts the story into a comic script for me to draw.  I draw the pages of Beth’s script in a pencil format and get another friend, Charles, to do the inks over my pencils.  I then get a fourth friend, Dave, to colour the inked pages, and then add the dialogue and sound effects myself to make for the finished comic, which we are calling Everyman.

Now, assuming that each step involved the creation of a new “work,” let’s take a look at the various works, the underlying works that they incorporate, and whose copyrights are incorporated therein.

  • Albert’s Story – Copyright held by Albert
  • Beth’s Script – Copyright held by Beth, incorporates the copyrighted work, Albert’s Story.
  • My Pencils – Copyright held by Me, incorporates copyrighted derivative work, Beth’s Script, as well as the copyrighted work, Albert’s Story.
  • Charles’ Inks – Copyright held by Charles, incorporates the copyrighted derivative works, My Pencils and Beth’s Script, as well as the copyrighted work, Albert’s Story.
  • Dave’s Colours – Copyright held by Dave, incorporates the copyrighted derivative works, Charles’ Inks, My Pencils, Beth’s Script, as well as the copyrighted work, Albert’s Story.
  • My Lettered Pages – Copyright held by Me, incorporates the copyrighted derivative works, Dave’s Colours, Charles’ Inks, My Pencils, Beth’s Script, as well as the copyrighted work, Albert’s Story.

 Now, this example assumed that there are no contracts, assignment of rights, employment relationships, or waiver of rights between any of these parties, and it assumes that there are distinctly separate stages to the creation of Everyman, but I think it serves to demonstrate how messy copyrights can get when artists collaborate on projects.

With that in mind, let us now turn to talk about the role of authorship in copyrights.

Authors and Makers

Like other forms of property, the intellectual property represented by a copyright is owned by a party or parties, for the term of the copyright.   As with most other forms of property, the ownership of a copyright can be transferred, in whole or in part, so long as copyright protection continues.  However, at the time that copyright protection first vests in a work, a specific kind of ownership is created, which is known as ‘first ownership’ that carries with it certain other rights which cannot be transferred, but can be waived.  These other rights, known as ‘moral rights,’ will be dealt with in another blog entry.

For most works, it is “the author of a work” who is the first owner of the copyright therein.   The term ‘author’ is not defined by the Copyright Act, but “generally the author of a work is the person who actually writes, draws or composes it.”  

In the case of comics, often the resultant works have multiple authors, particularly when artists and writers collaborate closely on the story and artistic elements of a comic.  

The Copyright Act defines such works as ‘works of joint authorship’ and they are defined as “works produced by the collaboration of two or more authors in which the contribution of one author is not distinct from the contribution of the other author or authors.”  

The rights that joint authors enjoy as the first owners in a work differ from the rights enjoyed by a sole author in the following ways:

  • In the absence of an agreement to the contrary, joint authors own the work as tenants in common, rather than as joint tenants, which means that if a joint author dies, their interest will pass to his or her beneficiaries, rather than the other joint authors.
  • In the absence of an agreement to the contrary, joint authors own an equal share of any copyright in a work of joint authorship.
  • A joint author cannot grant a licence for the exercise of exclusive rights available under the Copyright Act, relating to a work without the consent of the other joint authors.
  • A joint author may institute proceedings against another joint author to restrain that person from publishing a joint work without consent.

In the case of a visual medium like comics, it may be easier to distinguish between the contributions of an artist and a writer, but, then again, the history of comics is full of such disputes (such as the “disagreement” between Stan Lee and Steve Ditko, as to who “created” Spider-Man). 

As such, if you are creating comics with a colleague, it is worth noting how the rights enjoyed by a joint author differ from those of enjoyed by a sole author.

That is about all the time we have for this week’s talk about copyrights.  Next week we will start talking about what holding a copyright means and what that enables you to do with it. 

As always, thank you for taking the time to read my thoughts and I hope to see you back in seven days!

Until then, I have some drawing to do.

Yours very truly,

Kevin B. Madison

#yearofdrawing #comics #comicstrip #copyright #comicscopyright #comicsandcopyright #copyrights

Day 267 of a Year of Drawing 2014. Work in Progress: Inks done and colouring started on another illustration done to accompany Chadwick Ginther’s short story, A Simple Twist of Fate. #yearofdrawing #thunderroadtrip #thunderroad #chadwickginther #asimpletwistoffate

Day 267 of a Year of Drawing 2014. Work in Progress: Inks done and colouring started on another illustration done to accompany Chadwick Ginther’s short story, A Simple Twist of Fate. #yearofdrawing #thunderroadtrip #thunderroad #chadwickginther #asimpletwistoffate

Day 266 of a Year of Drawing 2014. Work in Progress: Pencils started on another illustration done to accompany Chadwick Ginther’s short story, A Simple Twist of Fate. #yearofdrawing #thunderroadtrip #thunderroad #chadwickginther #asimpletwistoffate

Day 266 of a Year of Drawing 2014. Work in Progress: Pencils started on another illustration done to accompany Chadwick Ginther’s short story, A Simple Twist of Fate. #yearofdrawing #thunderroadtrip #thunderroad #chadwickginther #asimpletwistoffate

Day 265 of a Year of Drawing 2014. Completed another illustration done to accompany Chadwick Ginther’s short story, A Simple Twist of Fate. #yearofdrawing #thunderroadtrip #thunderroad #chadwickginther #asimpletwistoffate

Day 265 of a Year of Drawing 2014. Completed another illustration done to accompany Chadwick Ginther’s short story, A Simple Twist of Fate. #yearofdrawing #thunderroadtrip #thunderroad #chadwickginther #asimpletwistoffate