Gerry Conway Claims DC Cheating Creators Out Of Royalties (UPDATED)

Look at the End of this Article For An Update.

On his Tumblr, comic book writer Gerry Conway took DC Entertainment to task for their policy of claiming that characters were derivative, justifying not paying their creators for the character’s use in other media. Unfortunately, they also claim that the creators of the original character aren’t the creators either, thus no one gets creator credit and thus, pay no royalties to anyone.

He also points out that DC Entertainment stopped proactively crediting creators after the departure of former DC President Paul Levitz, and now creators have to request royalties for all characters that they created in their time working for DC. It’s despicable that DC uses faulty logic to stop creators from benefit in any way from their creations’ use in mass media that nets DC, and their parent company Warner Bros. millions in revenue.

In case you haven’t clicked that link above, here is the full text from Conway’s post:

Who created Caitlin Snow, the alter ego of Firestorm super-villain Killer Frost, who appears regularly on The Flash?

According to DC Entertainment, nobody.

That’s right. Caitlin Snow, the brilliant scientist working for Harrison Wells, fiancée of Ronnie Raymond and friend of Barry Allen, aka The Flash, sprang fully formed into existence without a creator or creators.

But that’s okay, because, by the logic employed by DC Entertainment, nobody created Barry Allen either.

Let me explain. See if you can follow me here.

As I’ve described elsewhere (http://comicsequity.blogspot.com), many years ago DC Comics established the first program to provide comic book creators with a share in the revenues generated by their creations in other media. This concept became known as “creator equity participation” and it was a small but significant step toward compensating creators for their work beyond a simple page rate. For me, personally, it’s been moderately lucrative (thank you, Bruce Timm, for putting Killer Croc in the animated Batman) but in recent years it’s also become an increasingly frustrating and, lately, infuriating process.

The reason, I believe, is the shift of corporate culture at DC Comics that occurred around the time Paul Levitz left his position as publisher.

As a comic book creator himself, Paul displayed a protective empathy for creators. Once the creator equity concept became policy, Paul applied it liberally and proactively– often notifying writers and artists their creations were due to receive equity participation when creators would otherwise have no idea. For thirty plus years, under Paul, creators were valued and supported as equity partners. (We can argue about the level of support, whether the percentage creators received was commensurate with their contributions, but we can’t deny that the support was there, and it was consistent.)

All of that changed when Paul left, and DC Comics became, officially, DC Entertainment, a fully subsumed cog in the Warners Entertainment wheel.

I first learned how this change would effect DC’s approach to creators equity when I received a letter from DC Entertainment’s new president, Diane Nelson, informing me I would no longer receive equity payments for Power Girl because she was now considered a “derivative” character. To soften the blow and show “appreciation” for my “contribution” she enclosed a check for $1000.

Thank you, Diane.

The next thing I learned about DC Entertainment’s new approach to their comic creators equity program was just as distressing, given how many characters I created for DC over the decade-plus I wrote for the company: if I wanted to receive an equity participation contract for a character I created, I had to request one, in writing, for each character, before that character appeared in another media, because DC would refuse to make equity payments retroactively.

By a rough guesstimate, I probably created over five hundred characters for DC between 1969 and 1985. Most of them were minor one-shot creations, and some of them, like Felicity Smoak (now a regular on Arrow) were minor supporting characters who’ve taken on a new life in other media. Unless I’m willing to commit a large chunk of my life to tracking down each character and filing a separate equity request in anticipation that somehow, some day, one of these characters might end up on a TV show, I risk being cut off from any share in the fruits DC enjoys from the product of my labor. A share which DC acknowledges I’m due– but which DC refuses to assist me in receiving.

Thank you, DC.

But now we come to the catch-22 of DC’s new approach to creator equity agreements. Assuming I perform my due diligence (which should really be DC’s due diligence) and dig up references to characters I’ve created that might soon be appearing in other media (maybe as a chess piece, or a Heroclix figure, or a recurring character on The Flash), and assuming I file the necessary request form in a timely fashion– DC can still decide, unilaterally, that my creation is “derivative” and they don’t owe me a dime.

What, exactly, is DC’s definition of a “derivative” character?

It’s a character that DC decides was “derived” from some other previously existing character.

For example, Power Girl– “derived” from Superman, because, like Supergirl, she’s a relative of Superman. Which means I can’t claim to be her co-creator because Superman is a pre-existing character. Fair enough, I suppose. The logic here is that Superman is the original creation, so Power Girl is derived from that original creation, so in effect, Power Girl is an extension of Superman, which means, by this tortured logic, that Power Girl was more or less created by Jerry Siegel and Joe Shuster.

Uh, no.

This was the tortured logic National Periodical Publications tried to use back in the 1940s when Siegel and Shuster sued National for the rights to Superboy. National (the company that preceded DC) argued that Superman was the original creation, which Siegel and Shuster sold to National, and that Superboy was just a “derivative” creation. A court-appointed legal referee found that Superboy was in fact a unique creation and that National was guilty of copyright infringement. Sadly for Siegel and Shuster (and for creators everywhere), legal expenses forced the creators to sell National the rights to Superboy in a consent decree that obscured this fundamental finding. But the finding is pretty clear:

Characters “derived” from other characters are legally unique, and DC’s claim that “derivation” deprives creators of any equity participation rights in those characters is nothing more than an immoral, unethical, deceitful and despicable money grab.

Yet, it gets worse.

Let’s say DC agrees you created a character, like, for example, Killer Frost. In your original creation, Killer Frost had a secret identity named Crystal Frost. Later, a “new” Killer Frost is created for the New 52, and this new Killer Frost has a secret identity named Caitlin Snow.

You’ll be pleased to hear (I hope) that DC agrees I and Al Milgrom are the co-creators of all manifestations of “Killer Frost.” We are also considered the co-creators of Crystal Frost. And, of course, by the twisted logic that credits Power Girl as a derivation of Superman, Al and I must also be the creators of Killer Frost’s New 52 secret identity, Caitlin Snow.

Right?

No. We’re not. And DC insists we are not. And I agree with DC.

Caitlin Snow was created by Sterling Gates and Derlis Santacruz.

Except, according to DC Entertainment, she wasn’t. Because she was “derived” from the original creation of Killer Frost.

Which means Al Milgrom and I created her.

Except, according to DC Entertainment, we didn’t.

Nobody created her.

Or, rather, nobody gets credit and creator equity participation for creating her.

And that, my friends, is truly obnoxious and despicable.

DC Entertainment has created a marvelous catch-22 that allows them to cheat creators by using both sides of an argument to serve DC’s interests.

According to DC, Sterling Gates and Derlis Santacruz didn’t create Caitlin Snow. Don Newton and I didn’t create Jason Todd. Ric Estrada and I didn’t create Power Girl. Jerry Siegel and Joe Shuster didn’t create Superboy. Bob Kanigher and Carmine Infantino didn’t create Barry Allen.

These characters just appeared out of nowhere.

But the money for their exploitation goes directly into DC’s bank account.

In Conway’s case, it is the character Caitlin Snow, whom he agrees he is not one of the creators, but by a demonstration of DC’s corporate logic, nobody created her at all, despite her being a character in DC Comics. He demonstrates that nobody created the Flash that is currently one the CW Network’s biggest hits. By waiting for legal action by creators, going up against a corporate juggernaut  that can afford to pay legal fees for the years that an intellectual copyright case can take in the courts, we get creators left to suffer and die in poverty while their intellectual property gets mined to make millions for a company that purchased their original employer.

I echo Conway’s suggestion that fans troubled by DC’s policy towards paying creator royalties by writing to DC and to fan press, like us, or the Outhousers or io9 who have covered this particular story.

UPDATE (5/16/2015): Gerry Conway has issued an apology to the people he attacked in his initial post and subsequent discussions on the topic. He still stands by his opinion that the policy on derivative characters is wrong, but presuming the motives of those currently at DC was a step too far and colored by the events that led to him to leave DC in the mid-1980s. Here is his apology:

Why do I keep having to learn the same lessons over and over?

Those who follow my blog know that in recent weeks I posted some hot-headed remarks regarding my perception of how DC Comics treats creators. While I stand by at least one of my basic points – I think DC’s policy concerning “derivative” characters is self-defeating – I need to walk back pretty much everything else, especially my characterization of the motives of the men involved in developing, explaining and implementing DC’s creators equity program.

I need to apologize to Geoff Johns, Dan DiDio, Jim Lee, and Larry Ganem.

I’ve been an ass.

I won’t repeat the particulars because it would be a disservice to these well-meaning men to potentially re-ignite any hostility I may have inspired by my overheated blogging and emailing. Let’s just say I ascribed motives to people that were 180 degrees opposite to their actual intentions. Geoff, Dan, Jim, and Larry sincerely want to do the right thing by creators. I didn’t give them the proper credit for that; I interpreted a disagreement about process as evidence of malign intent. In so doing, I hurt people who didn’t deserve it, and offended people who were trying to help me.

I’m truly, truly sorry.

How did this happen? How could I be so wrong-headed?

I won’t try to excuse my behavior, but I do have an explanation I think might be useful to other people who find themselves in a similar situation– reacting to events in the present based on unresolved (or even unconscious) memories of events from the past.

To explain by way of a neutral, personal story:

For most of my adult life, until about ten years ago, I carried a grudge against my best friend from high school. (Yes, apparently I am that immature). We had what I believed to be an inexplicable falling-out a week before our senior prom, leaving me to scramble at the last minute to arrange alternate plans for my date and me. I never understood why my friend did what he did, and I carried a resentment over it for more than thirty years. Until, thanks to Facebook, we became reacquainted in the early 2000s, and finally met for dinner to talk over old times.

Which is when I learned the reason he cancelled our plans for prom night: he was angry with me for something I did a month before our final blow-up. Something that in my own sense of injury I completely discounted. Something I’d forgotten in the intervening years while I continued to carry my grudge. When he reminded me of what I’d done I felt ashamed and mortified. Not only had he been angry, he was well justified in his anger. He didn’t owe me an apology; I owed him an apology. (I hope I don’t need to say I immediately apologized, abjectly and profusely.)

This encounter with an old friend forced me to reconsider memories that I’d accepted as objective truth. It piqued my continuing interest in exploring why I believe what I believe, why some things I believe are true are in fact not true at all, and why I continue to repeat the same mistakes over and over.

(The marginally good news for my self-respect? Through my reading I’ve learned I’m not alone in this kind of self-justifying, unreliable memory; we all do it. Most of us credit ourselves for having more ethical motives than we actually possess; we blame others for more evil intent than they possess; and we remember events to our own advantage, putting ourselves in the right and others in the wrong. Knowing this is true, and that I’m not the only self-justifying jerk in the world, is a weak comfort.)

What does this have to do with my very public outrage over DC’s creator equity policies? Directly, of course: not much. Indirectly, of course: everything.

I didn’t leave DC on good terms in the mid-80s. At the time, as you might now guess, I blamed DC for that (and still feel the people involved might have handled things better). But as time has passed, and particularly after my humiliating encounter with my old high school friend, I’ve reconsidered my interpretation of that leaving, and I’ve accepted my own considerable contribution to the collapse of my business relationship with the company.

Unfortunately, my head doesn’t always communicate with my heart. And because I left the comic book business just a few year after I left DC, and spent the following twenty-five years doing other things, when I returned to the field it was as an emotional Rip Van Winkle. My mind had moved on but my heart was stuck in an angry place. Unconsciously, I was looking for proof that the DC Comics of today was the same DC Comics I fought with thirty years ago.

Like I said, I’m an ass.

As Geoff Johns very kindly pointed out to me when I tried to explain my reason for carrying a grudge over the last dealings I had with the company, “Gerry, you’re talking about things that happened when I was twelve years old.”

It was a horrible, humiliating lightbulb moment.

I’m not just an ass, I’m a jackass.

So– Geoff, Dan, Jim, Larry– I’m sorry. Deeply, truthfully, painfully sorry. You deserve more respect and consideration than I’ve given you. I hope this very public apology makes that clear.

In reviewing our reporting  after his apology, we see it was a bit heavy in it’s language, and we also regret any inference on the motives of people in charge at DC. We hope that respect for creators builds at DC, but still acknowledge that there is a long way to go.