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WYWH: Art Law Issue Spotting at the “New York Comic Con” (NYC)

By David Honig

View from above of a small section of the showroom floor

New York Comic Con (“NYCC”) took place earlier this month, October 8-11, 2015 at the Jacob Javits Center. In addition to christening the new 7 train subway stop at 34th street and 11th avenue, which opened on September 13, 2015, NYCC celebrated its tenth anniversary with comics, panels, parties, games and of course cosplay. ”Cosplay” (costume play) is when someone dresses up as a character from a tv show, movie, comic or anime.

NYCC is not simply an opportunity to dress up, brows new publications, and meet the artists and writers behind works such as Saga, Batman, Afterlife with Archie, Daredevil and The Wicked + The Divine. Each year NYCC’s organizers invite producers, publishers, actors and anyone tangentially related to comics to tackle important subjects in the realm of these multi billion dollar industries. In 2015, panelists discussed the new books being put out by both major and independent publishers, diversity in comics and the comics industry ranging from racial diversity to sexual diversity of both characters and creators, legal issues, and the artistic value of comics in the greater cultural context. For example, two panels were dedicated to Will Eisner (1917-2005), who, along with Jack Kirby (1917-1994), is arguably the most important and influential figure in comics. Eisner’s importance is especially true when looking at his impact on transforming the comic book medium into a recognized art form.

Cosplayers dressed as DC Comics characters gather for a group photo outside the Javits Center

The panels, “75 Spirited Years: Will Eisner & the Spirit” and “Will Eisner: Champion of the Graphic Novel,” were hosted by Geppi’s Entertainment Museum (the “Museum”) to coincide with an exhibit hosted in Baltimore celebrating the 75th anniversary of the Spirit, a character created by Eisner. One of the panels discussed the Museum exhibit as well as Eisner’s life and his impact on the industry. Panelists included Karen Green, the graphic novel librarian at Columbia University, as well as Denis Kitchen, founder of the Comic Book Legal Defense Fund [CBLDF].

CBLDF is a non-profit organization established in 1986, dedicated to freedom of speech. Through donations the CBLDF helps pay for attorneys fees for cases related to first amendment issues and comics. In addition to helping comic readers, publishers and authors obtain legal services CBLDF also fights censorship.

CBLDF, had multiple representations at NYCC, in addition to having a booth on the showroom floor where signed copies of books created by famous supporters were sold, CBLDF hosted parties and panels The topics of this year’s CBLDF panels were banned comics and censorship.

Indeed, manifestations of art law, issues involving creative visual output and the law are not rare in the comics realm.  In addition to the predictable copyright, licensing, trademark and First Amendment disputes, other cases that have stemmed from the comics may be related to such unlikely practice areas as patent law. One striking example took place just this year, on June 22, 2015 when the Supreme Court of the United States decided Kimble v. Marvel Entertainment, LLC., a patent law case related to Spider-Man. In 1990 Stephen Kimble was awarded US Patent No. 5,072,856 titled “Toy web-shooting glove.” The abstract of the patent is as follows,

The combination of known components to produce a new toy shooting apparatus. A toy that makes it possible for a player to act like a spider person by shooting webs from the palm of his or her hand. The webbing material consists of string foam delivered from a hidden pressurized container through a valve incorporated into a glove worn by the player. A trigger mechanism enables the player to activate the valve at will by the exercise of pressure with the fingers of the hand wearing the glove.  

Patent drawing of the apparatus

After independently inventing the “Toy web-shooting glove” and obtaining a patent Kimble tried to license or sell his patent to Marvel so it could create a line of toys modeled off of Spider-Man’s web shooters – the device Spider-Man created to shoot webs out of his hands. Marvel declined to license Kimble’s invention but went ahead with creating a line of toys modeled off of Spider-Man’s web shooters which it called the “Web Blaster.”

Kimble sued Marvel claiming its line of “Web Blaster” toys infringed his patent. Marvel and Kimble eventually settled the patent infringement suit and Marvel agreed to purchase the patent from Kimble and pay him a royalty on all future sales. The contract between Kimble and Marvel stated that Marvel would pay a royalty fee to Kimble but there was no specified end date, meaning Marvel would have to pay a royalty to Kimble for every “Web Blaster” sold even after the patent expired and stopped conferring exclusive use on its holder. Unbeknownst to Kimble or Marvel at the time they entered into the contract, a 1964 Supreme Court decision, Brullotte v. Thys Co., held that a patentee, the person who holds or initially obtains a patent, cannot receive royalties for a patent after the patent term expires. The patent term expires after a statutory period, currently 20 years after filing for all patents filed after June 8, 1995, at which point the information in the patent is dedicated to the public and the holder of the patent can no longer claim exclusive use. (From the Editors: more about art and patent law coming soon).

After discovering Brullotte, Marvel sought and received a declaratory judgment stating that it did not have to pay Kimble royalties after the patent term expired, even though the contract between Marvel and Kimble outlined an agreement to the contrary. Kimble appealed this decision all the way up to the Supreme Court. The ultimate issue in the case was whether the Supreme Court should overrule Brullotte in spite of stare decisis – a doctrine that says precedent should be followed and only overturned when absolutely necessary. Not only did the Supreme Court rule in favor of Marvel but it did so in such a way as to invoke one of Marvel’s most famous comics – Amazing Fantasy No. 15.

Amazing Fantasy No. 15, written by Stan Lee with art (or “pencils” in the comics world) by Steve Ditko, was published on August 10, 1962 introducing the world to Peter Parker and his alter ego – the Amazing Spider-Man. The final panel in the 1962 lead story ends on a somber image: Spider-Man’s back as he is walking through a concrete jungle with the moon high in the sky and a caption which includes the now famous phrase: “WITH GREAT POWER THERE MUST ALSO COME — GREAT RESPONSIBILITY!”

Screen shot 2015-10-26 at 1.17.55 PM
© Marvel Comics, 1962

It seems that in the Court’s view, the power to overturn cases and change the law is akin to Peter Parker’s Spider-Man powers; as such in the closing paragraph of the majority opinion Justice Kagen cites the famous phrase above to illustrate why Brullotte should not be overturned. Where Spider-Man has the responsibility to use his powers to save anyone and everyone, the Supreme Court must use its power to overturn cases sparingly and only do so when stare decisis allows.

There must be a comic fan clerking at the Supreme Court, because in addition to quoting Amazing Fantasy 15, the majority opinion in Kimble makes a reference to the 1967 song “Spider-Man,” written by Paul Francis Webster and J. Robert Harris for the animated television series of the same name. The court made this reference while discussing the fact that the contract between Marvel and Kimble contained no end date and that the contract seemed to suggest Marvel would have to pay royalties “for as long as kids want to be like Spider-Man (by doing whatever a spider can).”

The Supreme Courts cite to Amazing Fantasy is just another in a long line of victories in establishing the value of comic books and the transformation of comic books into a recognized art form. What was once thought of as a curiosity for children has slowly evolved and become more accepted into mainstream culture. While visionaries like Will Eisner might have imagined a day that his art was hanging up in museums and being collected by Ivy League universities most of his contemporaries did not.

About the Author: David Honig is a post graduate fellows at the Center for Art Law. He is a member of the Brooklyn Law School class of 2015. While attending law school he focused his studies on intellectual property and was a member of the Brooklyn Law Incubator & Policy (BLIP) Clinic. He is currently pending admission to the New York and New Jersey state bars.  

Disclaimer: This article is for educational purposes only and is not meant to provide legal advice. Readers should not construe or rely on any comment or statement in this article as legal advise. Instead, readers should seek an attorney.