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.
But.
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.]
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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.)
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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.
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Very interesting. Though I was expecting an appearance by the Lawtwister, MrMisinterpretor, Captain Bluster and other contemporary comic characters, as in most of your other blogs.
So, Neil Gaman is the goose and DC want him to carry on laying the golden eggs.
Pretty much, yes. Neil Gaiman has had a high enough profile as a best-selling author outside the DC universe for a long time now. That his work is difficult to see as traditional superhero schtick also helped.
WB have obiously taken account of this, and Gaiman is canny enough to have reminded them. He’s also now a successful showrunner so everybody wins.
Alan Moore may be a legendary figure but he’s not sold as consistently as Gaiman has. Watchmen’s characters, if you squint and shave the edges off, have a more traditional superhero aesthetic so are simpler to treat as such. The movie kinda sucked as a result…
DAG and Neil Gaiman? This is the crossover event we’ve been waiting for.
A few years ago, David managed to slip a list of 7 things beginning with D into a Financial Times article about how the government was failing to deal with Brexit. In the comments on that article, someone (not me, sadly) spotted that the sandman plot-point of Delight turning into Delirium might turn out to be relevant too…
Of course, there was one moment when this failed, and Death appeared in Captain Atom. It’s not the best rendition of the character.
I do think the DCU Endless are ultimately inevitable once Gaiman stops producing new stories – just like Moore’s Promethea eventually turned up in the JLA.
Action Comics #894 – Death of the Endless appears to Lex Luthor.
The issue in question was written by Paul Cornell; Neil was, I believe, consulted and gave his blessing.
There have been a few cases like that. Death appears in a couple of panels of a Lobo comic from the mid-nineties, too, and the Daniel version of Dream appears in Grant Morrison’s JLA. And of course there were the various spin-off comics Vertigo put out — Lucifer, The Dead Boy Detectives, The Dreaming, and so on — and various Vertigo crossovers like The Children’s Crusade and Books of Magic which featured peripheral Sandman characters (and which had Gaiman’s involvement).
So they’ve not totally refrained from doing stuff like that, they’ve just kept it at a level that doesn’t affect the main series.
Control of characters is clearly difficult. There was a recent case in France over the use of Tintin in pictures emulating Edward Hopper by an artist with no right to the character, where his right to parody was upheld and Hergé’s heirs lost.
https://www.theguardian.com/books/2021/may/12/tintin-heirs-lose-legal-battle-over-artists-edward-hopper-mashups
Oh yes, that was really funny!
This was really interesting to read and I’m really looking forward to the series when it comes.
I had thought that Neil Gaiman wasn’t showrunner on Sandman? I remember reading somewhere (naturally can’t find it now) that showrunning Good Omens took a lot out of him and so he didn’t want the role this time round, but he did want more involvement than on American Gods. Sorry, can’t find the link.
Very much not the case.
Allan Heinberg is the showrunner, but Gaiman is extensively involved. So, more involved than American Gods, less involved than Good Omens. Gaiman posts on his tumblr about receiving updates and footage from the set.
https://www.hollywoodreporter.com/tv/tv-news/sandman-tv-series-neil-gaiman-david-goyer-a-go-at-netflix-1220761/
As something of a counterpoint to Gaiman’s success (thus far) in keeping some control over his DC creations was his battle with Todd McFarlane over the characters he created for McFarlane’s Spawn comic. Despite the whole raison d’etre behind Image (the publishing company McFarlane and others set up) was that the creators would own and control their own creations, a dispute over the rights to use the characters Gaiman created for Spawn raged for a decade (in the mix was another disputed character, Miracleman): –
https://www.hollywoodreporter.com/business/business-news/spawn-comic-book-todd-mcfarlane-neil-gaiman-286071/
FWIW I think one of the reasons the Sandman characters have not entered the mainstream DCU “yet” is because DC do still have plenty of occult characters to play with that we’re born in that period that led to the Vertigo line (Constantine in particular) and are a little easier to slot into, let’s say, a Batman story line. But I think it’s inevitable that they will tap the resource whenever they think the rewards offset whatever blowback they’ll get from their creator.
Overall it has probably been to the detriment of comics as an art form that rights ownership has tended to reside with the publishers rather than the creators (in the US and UK are the countries I’m most familiar with). Originality and depth have probably suffered. Why is this the case? Most likely it is due the ‘cost of production’. Stephen King purportedly once said that it had cost him $24 in typing paper to write The Shining, but had cost Kubrick $18 million to make a film of it. Comics are somewhere in between on that spectrum – because of the graphic content, they are fairly labour-intensive to produce and the resultant printed product relatively expensive to reproduce. A ‘Stephen King’ producing a comics masterpiece in their bedroom is conceivable but almost certain to be less likely than them producing a novel – particularly given that, in comics, writing and artwork are often done by two different people.
There are notable exceptions – The Spirit, which Will Eisner mainly wrote and drew himself, being an early one. Wikipedia has an interesting summary of how he retained rights for that character. Neal Adams, whose Green Lantern at DC Comics was renowned, started in the 1970s to promote and advance the cause of comic creators’ rights. Marvel’s Epic Illustrated in 1980 was one response – creators retained their rights.
An interesting question is whether, in 1988, when Neil Gaiman wrote The Sandman, could he have had it published outside the DC universe, with Gaiman fully retaining the rights? Could Alan Moore and Dave Gibbons have found a publisher with whom they could have retained the rights to Watchmen in 1986?
You may be familiar with the Marvelman/Miracleman comics created by Alan Moore and originally drawn by Alan Davis that began life in Warrior (a short lived British anthology comic). When Warrior went belly up, the independent US publisher Eclipse took on the title and as was their policy, rights were shared equally between publisher, writer and artist, Eclipse also eventually went to the wall in the middle of Gaiman’s run on Miracleman. Both Eclipse and Warrior were very much creator friendly publishers….neither of which are around today.
So while it’s probably true to say that the big 2 publishers have stifled the creativity of the comic book medium (in the West at least), it might also be true to say that the medium may not exist in a commercially viable form without them.
For me, one of the best things about Sandman was that it began as a reinvention of an existing character. Gaiman was invited by DC, like Moore and Morrison, to work with their existing stories, and to reinvent certain comics, along with their relationship to the wider universe.
Where people have wanted to reinterpret characters outside of the owner’s right, they have managed to. Alan Moore rewrote Superman as Supreme; and Warren Ellis rewrote Batman and Superman as lovers (characters who, themselves, as now incorporated into the main DC universe).
But, for me, a book like Tom King’s Mr Miracle would not work so well without its relationship to the wider DC universe. By using these existing characters to tell a story about depression, King produced something more powerful than he could without these years of other stories standing behind them.
Sandman would not have been the book it was without the links to the wider DC Universe, although it edged away from that later on. But Gaiman was able to use the existing character of Lyta Hall, and Superman turns up briefly late in the series.
The answer to those questions is ‘no’, if you know the origins of those comics: in fact, ironically, both started as projects intended to maintain rights in particular previously published or recently acquired characters.
Around the Web, I’ve read that Gaiman offered the Sandman character for George R. R. Martin’s “Wild Cards” series, but Martin declined. He then took it to DC.
One crossover though was on TV – Lucifer was part of the DC Arrowverse in Crisis on Infinite Earths.
Far too intellectual (obsessive?) for me. I remember reading Beano and Dandy and Dan Dare as a kid.
The Audible audio-drama adaptation of The Sandman — with a superb cast, including Gaiman himself as the narrator — is one of the best things I’ve heard in a very long time. I really hope the TV version will be as good, but it’s so much easier for the visual element of adaptations to disappoint (the old cliché of the pictures being better on radio).
You allude to this a little in the piece, but I think an important factor is that Alan Moore had written some tremendously profitable books for DC Comics (Watchmen, V for Vendetta and others) and then permanently left the publisher over a rights dispute.
So when Gaiman, no doubt extremely politely, gave them the conditions of his continuing to work with them, they took him seriously and made some concessions. If he had been working for them a few years before, I suspect he wouldn’t have been so fortunate.
Excellent advice from David as always. Enforcing rights at law precedes the penitence your Lawyer does their best to negotiate, and can never fully mitigate the damage your poor contract management skills have done you.
With the respect certainly due to Alan Moore for standing his ground at DC, why won’t he resurrect Halo Jones – she has nothing to do with them? Might he be pressured on equal right to work for unemployed heroines?