8th June 2021
How can a creator keep control of the characters they create when the intellectual property in those characters are owned by others?
In the DC and Marvel universes there are thousands of characters, the intellectual property rights in which are owned and exploited (and tightly policed) by the relevant corporations.
Usually the creators – writers and artists – will be subject to contractual provisions that assign the intellectual property rights in the characters they create to the corporation hiring them for their work.
(Note that there is not really an ‘intellectual property right’ in characters as such – what we are talking about here is a mish-mash of copyright, trade marks and other legal rights that, taken together, mean that the rights holder can prevent anyone else from using the character.)
Much of the time this does not cause any problems.
But it means that usually creators lose control of their creations – and sometimes this can be rather a shame.
For example, Jack Kirby radically extended the DC universe with his New Gods – but now the characters he created are just part of the DC universe, and Darkseid is just another supervillain among others.
Alan Moore and Dave Gibbon’s Watchmen characters – who were carefully placed in their own self-contained world – have now also (and regrettably) been put into the DC universe, and Dr Manhattan is now just one super-duper powered character among others.
There is one group of characters owned by DC that have not been absorbed into the wider universe and made available for other writers and artists to exploit.
These are the Sandman characters created by Neil Gaiman (and various artists).
The character ‘Death’ has not become a member of the Justice League, and “Destruction’ has not been brought out of retirement to battle with Darkseid and Dr Manhattan.
The Sandman world has somehow kept its integrity – even though (a) it would be commercially valuable for DC to exploit the characters in other titles and (b) nothing at law could stop DC from doing what it likes with its characters.
So why has the Sandman world not gone the way of the New Gods and Watchmen and been squeezed dry by the Warner corporation (that owns DC) seeking to maximise profits from its assets?
This has long puzzled me.
And so I asked Neil Gaiman himself:
@neilhimself— davidallengreen (@davidallengreen) October 30, 2020
Can you tell how you manage to keep such control of your DC characters?
Kirby's New Gods (a similar extension of the DC universe) were all absorbed into wider continuity, as now are Moore's Watchmen
From IP lawyer's perspective, fascinating how you keep control
And – wonderfully – he replied and at length – and the reasons are interesting:
‘It goes in several stages (and could go away tomorrow).
‘1988-1992 Sandman was selling. Nobody quite knew what I was doing. Whatever it was it was working. I had no power or control, but DC people were fans and Dave McKean and I had won a battle not to have Morpheus on covers.
1992-1994 Vertigo happened, and Sandman was the Vertigo flagship title. People wanted to know what would happen when Sandman was done, and I’d explain that if DC let it end then, I’d keep working with DC. If not, I wouldn’t. And the powers at DC wanted to keep me on board. And graphic novels collections of ongoing comics were, as of The Doll’s House, a thing. And they were selling and selling. So the loss of an ongoing comic wasn’t a disaster.
‘1995-2015 Sandman is allowed to end. I do occasional books for DC. In 2003 ENDLESS NIGHTS is the first graphic novel to turn up on the NYT bestseller list. Paul Levitz (and Diane Nelson, when Paul leaves) and Karen Berger, and when Karen leaves, Shelly Bond are always supportive.
‘Meanwhile many attempts to make Sandman movies and TV happen and fail, without my involvement.
‘Warners was always aware that Sandman is, in their words, a jewel in the crown, and once Good Omens had happened, and they realised that I knew what I was doing in TV more or less, they realised that it would be better for Sandman if I were actively making it.
‘I’ve always been aware that they own the characters I created for them when I was 26, and legally can do whatever they want with them.
‘But I’ve tried to make it a more attractive proposition for them to work with me than to end the working relationship, and they’ve always stepped up.’
[Lightly edited – the original tweets are here.]
This is absolutely fascinating from an intellectual property law perspective.
Scheherazade-like, Neil Gaiman used commercial and creative imperatives to keep achieving what he could not enforce at law.
And Warner has had the wit and sense not to just exploit these particular assets in the way they had done with the Watchmen characters.
(Though the recent Watchmen television series shows how allowing another great creator access to prized characters can sometimes work well.)
There is a misconceived notion that intellectual property rights in characters (and not just comic book characters) always have to be exploited to the full.
Had Warner freely exploited the Sandman characters as it had done with others, we would now be unlikely to have the upcoming Sandman series with Neil Gaiman as show-runner.
Sometimes holding off exercising legal powers leads to better outcomes.
For, as the eminent jurist Benjamin Parker always averred, with great power comes great responsibility.
Thank you for reading.
This law and policy blog provides a daily post for you and others commenting on and contextualising topical law and policy matters.
If you value this free-to-read and independent legal and policy commentary for you and others please do support through the Paypal box above, or become a Patreon subscriber.
Each post takes time, effort, and opportunity cost.
Suggested donation of any amount as a one-off, or of £5 upwards on a monthly profile.
You can also subscribe for each post to be sent by email at the subscription box above (on an internet browser) or on a pulldown list (on mobile).
This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
Comments are welcome, but they are pre-moderated.
Comments will not be published if irksome.