As comics giants make billions from their storylines and characters, writers & artists are speaking out about the struggles for fair pay.
(Sam Thielman, The Guardian, 9 August 2021)
Watch any superhero movie and you will see a credit
along the lines of “based on the comic book created by”, usually with the name
of a beloved and/or long-dead writer or artist. But deep, deep in the credits
scroll, you will also see “special thanks” to a long roster of comic book
talent, most of them still alive, whose work forms the skeleton and musculature
of the movie you just watched. Scenes storyboarded directly from Batman comics
by Frank Miller; character arcs out of Thor comics by Walt Simonson; entire
franchises, such as the Avengers films or Disney+ spinoff The Falcon and the
Winter Soldier, that couldn’t exist without the likes of Kurt Busiek or Ed
Brubaker.
The “big two” comic companies – Marvel and DC - may pretend
they’ve tapped into some timeless part of the human psyche with characters such
as Superman and
the Incredible Hulk, but the truth is that their most popular stories have been
carefully stewarded through the decades by individual artists and writers. But
how much of, say, the Marvel Cinematic Universe’s (MCU) $20bn-plus box office
gross went to those who created the stories and characters in it? How are the
unknown faces behind their biggest successes being treated?
Not well, according to Brubaker who, with Steve Epting,
revived Captain America’s sidekick Bucky Barnes to create the Winter Soldier,
portrayed by Sebastian Stan in Marvel’s films and shows. “For the most part,
all Steve and I have got for creating the Winter Soldier and his storyline is a
‘thanks’ here or there, and over the years that’s become harder and harder to
live with,” Brubaker recently wrote in a
newsletter.
“I have a great life as a writer and much of it is because
of Cap and the Winter Soldier bringing so many readers to my other work,” he
added. “But I also can’t deny feeling a bit sick to my stomach sometimes when
my inbox fills up with people wanting comments on the show.” (Marvel told the
Guardian it had to “decline to comment out of respect for the privacy of
[Brubaker and Epting’s] personal conversations [with the company].”)
Comic creators are “work-for-hire”, so the companies they
work for owe them nothing beyond a flat fee and royalty payments. But Marvel
and DC also incentivise popular creators to stay on with the promise of steady
work and what they call “equity”: a tiny share of the profits, should a
character they create or a storyline they write become fodder for films, shows
or merch. For some creators, work they did decades ago is providing vital
income now as films bring their comics to a bigger audience; they reason – and
the companies seem to agree – it’s only fair to pay them more. DC has a
boilerplate internal contract, which the Guardian has seen, which guarantees
payments to creators when their characters are used. Marvel’s contracts are
similar, according to two sources with knowledge of them, but harder to find;
some Marvel creators did not know they existed.
A Marvel spokesman said there was no restrictions on when creators could approach the company about contracts, and said that they are having ongoing conversations with writers and artists pertaining to both recent and past work. A DC spokesman did not return multiple requests for comment. But the use of these contracts is at these companies’ discretion and the promised money can fall by the wayside.
“The squeaky wheel gets the grease,” Jim Starlin, who created Thanos, recently told the Hollywood Reporter; Starlin negotiated a bigger payout after arguing that Marvel had underpaid him for its use of Thanos as the big bad of the MCU. Prolific Marvel writer Roy Thomas got his name added to the credits of Disney+ series Loki after his agent made a fuss. But these are creators that Marvel needs to keep happy; things can go very differently if nobody cares when you complain.
Bestselling author Ta-Nehisi Coates, who wrote a run of Marvel’s Black Panther and followed Brubaker and Epting’s Captain America run with his own a few years later, says that he believes Marvel has moral obligations to its artists and writers that go beyond contracts. “Long before I was writing Captain America, I read [Brubaker and Epting’s] Death of Captain America storyline, and Return of the Winter Soldier, and it was some of the most thrilling storytelling I’d ever read,” Coates says. “I’d rather read it than watch the movies – I love the movies too – but it doesn’t seem just for them to extract what Steve and Ed put into this and create a multi-billion dollar franchise.”
Coates says he feels fairly treated when it comes to his own
work, but he is adamant that lesser known names deserve better treatment from
the big studios, no matter what their contracts say: “Just because it’s in a
contract doesn’t make it right. If I have some kind of leverage over you, I can
get you to sign a contract to fuck you over. It’s just legalist.”
Over the decades, Marvel and DC have become parts of Fortune
500 companies: the Walt Disney Company owns Marvel, and DC is owned by a
subsidiary of AT&T. Now, deciding what share of the success their comic
creators deserve is a matter of complex wrangling between Marvel and DC, which
want to maintain good relations with their talent, and the vast bureaucracies
above them.
Among creators, there is a general sense that it has become
harder to get paid at Marvel. One source told the Guardian that Marvel subtracted
its own legal fees from a protracted negotiation over royalty payments. Others
who have worked for DC and Marvel say both count on artists and writers
preferring not to spend time chasing them for royalties.
“Lawyer up, always, with comic book company contracts,” says
Jimmy Palmiotti, longtime writer of DC characters such as Jonah Hex and Harley
Quinn. “They are not in the business of feeding you the math.” Once a year,
freelancers are allowed to audit the returns on their creations for DC and
Marvel, but Palmiotti says it happens too rarely: “I can count on one hand the
number of creators who’ve actually audited a major comics company.”
According to multiple sources, when a writer or artist’s
work features prominently in a Marvel film, the company’s practice is to send
the creator an invitation to the premiere and a cheque for $5,000 (£3,600).
Three different sources confirmed this amount to the Guardian. There’s no
obligation to attend the premiere, or to use the $5,000 for travel or
accommodation; sources described it as a tacit acknowledgment that compensation
was due. Marvel declined to comment on
this, citing privacy concerns. “We can’t speak to our individual agreements or
contracts with talent,” said a spokesman.
Several sources who have worked with Marvel say that
remuneration for contributing to a franchise that hits it big varies between
the $5,000 payment, nothing, or – very rarely – a “special character contract”,
which allows a select few creators to claim remuneration when their characters
or stories are used. There are other potential ways to earn more – many former
writers and artists are made executives and producers on Marvel’s myriad
movies, cartoons and streaming series, for example – but those deals depend on
factors other than legal obligation. “I’ve
been offered a [special character contract] that was really, really terrible,
but it was that or nothing,” says one Marvel creator, who asked not to be
named. “And then instead of honouring it, they send a thank you note and are
like, ‘Here’s some money we don’t owe you!’ and it’s five grand. And you’re
like, ‘The movie made a billion dollars.’”
Both Marvel’s “special character contract”, or DC’s equivalent,
a “creator equity” contract, are ways to keep creators happy enough that they
don’t hold back all of their original creations for competitors. DC pioneered
these contracts back in the 1970s and 1980s, responding in part to Marvel’s
treatment of Captain America creator Jack Kirby. Jim Shooter, then Marvel’s
editor-in-chief, refused to return original art to Kirby unless he signed a
lengthy release form allowing the company to adapt his creations – including
the Incredible Hulk, the Fantastic Four, Iron Man, Black Panther and the X-Men
– without any compensation. DC saw an opportunity to score PR points, and
offered Frank Miller, Alan Moore and Dave Gibbons what appeared to be much
better contracts for works such as Ronin and Watchmen. (The company used a technicality to
renege within a few years).
Brubaker has recalled once attending Comic-Con, where he
watched Roz Kirby yell at Jim Shooter about his mistreatment of her husband in
the middle of a panel on creators’ rights. (The panel, incidentally, included
Moore and Miller, who were celebrating the apparent fairness of their own
contracts at DC.) Decades later, Brubaker helped Marvel find success with his
Captain America run with Steve Epting. According to sources, Brubaker and
Epting showed up in tuxedos to the premiere party for Captain America: The
Winter Soldier, a movie directly based on their comics, only to find that they
weren’t on the list. Brubaker texted Sebastian Stan, the actor who played his
and Epting’s character, Bucky Barnes, and he let them in.
Some creators told the Guardian that they did not know that Marvel even had the special character contract like DC. In fact, the Guardian has seen an application for the “Marvel Special Character Contract”, in which creators can formally ask Marvel whether one of their characters qualifies for extra payouts. In the application form, Marvel explicitly reserves the right to tell creators their characters aren’t original enough to get the bonus, warning that “the decisions are final” and not subject to appeal. DC uses the same measure; in 2015, the studio was criticised for cancelling payments to writer Gerry Conway for his character Power Girl, which the company retroactively decided was derivative of Supergirl and therefore ineligible for the contract, according to Conway. He no longer receives payments for her, he confirmed to the Guardian. DC did not respond to request for comment.
The Power Girl incident highlights how ethically fuzzy these
contracts are, since they’re issued by DC and Marvel, drawn up unilaterally by
the companies, and paid out when the companies account for their many films, TV
shows, video games, trading cards, action figures and sundry other merch. One
creator, who asked to remain anonymous, said he and other creators sometimes go
to Target to take pictures of action figures of their characters for which
payments are due, to demonstrate that their cheques are short.
DC and Marvel came into their own at a time of change in
copyright law. The Copyright Act of 1976 gave artists the one-time
right to cancel their contracts with IP holders, an option many
exercised after witnessing the mistreatment of Superman
creators Jerry Siegel and Joe Shuster, who were left penniless. Artist
Al Jaffee once claimed his pay cheques from EC Comics were issued with
contracts on the back, so he couldn’t cash them without signing over the rights
to his work. This was a common practice throughout the industry, including
at Marvel, and one that was reevaluated in the wake of the act.
As comics publishers evolved into major media operations,
their staff grew concerned about mistreatment of talent. There were famous
fights over royalties, and thorny questions over what credit was due to
thousands of co-creators working in a shared universe. In 2000, a consortium of
publishers founded a charity to directly aid artists who’d fallen on the
hardest times, called the Hero
Initiative. (Marvel is a founding member, and AT&T lets employees
donate directly from their paycheques.) By the 1980s, people who worked in
comics at every level were fans, in the same way that even the ushers on
Broadway can sing and dance if called upon. In 1986, DC editor Paul Levitz and
DC president Jeanette Kahn were working on new schemes to more fairly
compensate writers and artists. Moore, Gibbons, and Miller’s contracts were
meant to usher in a new era of fairness. It was a long time coming: some were
already looking askance at DC after its treatment of Siegel and Shuster came to
light during the production of the 1978 film Superman.
But Moore and Gibbons’s Watchmen was a huge success, going
through multiple reprints – unprecedented for a graphic novel – and DC never
had to let its right to republish lapse, so it never did. The pair had a right
to a share of merchandise profits; DC produced merch, classified
it as “promotional items” and told Moore and Gibbons they weren’t owed
anything. The vaunted in-house contracts that can make creators’ lives livable
can always be subverted.
To the extent that there is any semblance of fairness in the
industry now, it’s primarily Levitz’s doing, alongside Kahn and Karen Berger,
who is now at Dark Horse Comics. Levitz left DC in 2009, but his influence is
still felt across the industry. “You
want to create a situation where you never get to the old Russian joke where
they pretend to pay us, and we pretend to work,” Levitz says. “You want people
to win when the companies win. I’m proud of the fact that we improved the
quality of how we treated creative people.” More than one creator recounts
calling Levitz to ask for more money because of a scene in a lucrative Batman movie that
lifted plot points or names from their work, then being shocked when they got
it.
Many of his peers say that Levitz was a bulwark against
meddling by executives at Warner Brothers. For years, he blocked the
publication of Watchmen sequels, of which Moore and Gibbons disapproved –
something DC did soon after Levitz left, to widespread condemnation. Without
another Levitz, the “big two” are once again attracting the criticism that led
to the creation of these elusive “special” contracts in the first place. Some
creators have left the medium entirely, but others have founded their own
studios, such as Image and Dark Horse, providing creators with alternative
outlets. As Marvel and DC may find, more creators – Brubaker and Jupiter’s
Legacy creator Mark Millar are already among them – will simply not work for
them again.
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