The Writers’ Guild of America is on the verge of a strike; here’s why. Their complaints look pretty reasonable to me. I think most of their demands don’t count as rights (except insofar as they can gain contractual assurance of them), but not all legitimate claims are rights; so I support their strike.
Defenders of intellectual property often say that without it, writers and artists would get screwed. As if they don’t get screwed already! Most of the monetary benefits from IP go to mammoth publishing/recording/filmmaking firms rather than to the creators. A better way to protect creator interests is through the kind of collective bargaining that the outfits like the Writers’ Guild (for all its flaws, and there are plenty) provide.
Right-libertarians often suggest than unions would have less power in a free market. Well, they’d certainly have a different kind of power; you wouldn’t see the phenomenon of legally-privileged-but-also-legally-regulated “business unions” co-opted as junior partners into the corporate/governmental establishment. But a freed market, by breaking the back of the cartelised and oligopsonistic corporocracy, would enhance unions’ bargaining power relative to business.
On a somewhat related subject: in the mid-1970s a short-lived but quite good Marvel comic book called Omega the Unknown (a grim and thoughtful tale about the mysterious psychic bond between a taciturn alien visitor and a hyper-analytical child, both lost in a world of baffling humans) written by Steve Gerber (of Howard the Duck fame) and Mary Skrenes, ran for ten issues before being cancelled; it ended without any of the puzzles being solved or loose ends tied up. To Gerber’s dismay, the storyline was later resolved by other writers in the pages of former Gerber comic The Defenders; the resolution was deeply inconsistent with the spirit of the original series, and few fans accepted it as canonical (any more than any fan of DC’s moody 1970s sword-and-sorcery hero Stalker were happy with his later transformation into a cardboard supervillain fighting the Justice Society of America).
Now Marvel is releasing a new limited series (more a reimagining than a continuation) of Omega the Unknown, penned by Jonathan Lethem, and Gerber is reportedly less than pleased. (The fact that a new Howard the Duck series premieres this week as well probably doesn’t help.) Gerber writes:
I am not happy about Marvel’s revival of Omega, and the writer of the book has made an enemy for life by taking the job. According to some people, he actually professes to be a fan of my work. If that’s even minimally true, what he’s done is even more unforgivable.
As a rule of thumb, if the creator of a character or series is alive and still active in the industry, another writer or artist’s ‘revamping’ of his work at a publisher’s behest constitutes an expression of contempt, not tribute – and all the more so if the original creator doesn’t even share financially in the enterprise. I am not the only writer or artist who feels this way, incidentally.
Gerber later backed off from the “enemy for life” comment, but added:
I still believe that writers and artists who claim to respect the work of creators past should demonstrate that respect by leaving the work alone – particularly if the original creator is still alive, still active in the industry, and, as is typically the case in comics, excluded from any financial participation in the use of the work.
Over the last decade or so, it’s become the trend in the industry for creators just to let these things slide. … Remaining silent, however, would implicitly condone the comic book industry’s business practices up through the early 1980s and the means by which publishers claim to have procured ownership of characters and story material in those days.
Remaining silent would also perpetuate the fiction promulgated by publishers that ‘we all knew’ what rights we were supposedly giving up by signing our paychecks. (In those days, the publishers’ favored instrument for acquiring rights to material was a one-party ‘contract’ printed or stamped on the back of a writer or artist’s paycheck. This so-called ‘agreement’ set forth terms of employment that were rarely if ever agreed to by the writer or artist prior to the start of work.) The truth is, we didn’t all know. Most of us had no idea ….
When a writer of Jonathan’s stature agrees to participate in a project like this, he also, intentionally or not, tacitly endorses the inequities of the old system. … Jonathan, if you’re reading this – rather than ask you to back out of a business commitment, rather than deprive the fans of what will probably be an excellent story, I propose that you simply retitle the story and rename the characters. ‘Omega The Unknown’ has little or no commercial cachet, so call the book something else. Call the kid something other than James-Michael Starling.
Judging from the first issue, Lethem has acquiesced to Gerber’s request to “call the kid something other than James-Michael Starling,” but the comic is still titled Omega the Unknown, and thus far the new storyline follows the original pretty closely, and even the dialogue is often identical.
My take: not believing in intellectual property, I don’t think either Marvel or Lethem has violated any of Gerber’s rights by releasing this new series. Thus I don’t need to get into the details of the contract, since a contract to transfer a nonexistent right is not valid in any case. (Full disclosure: I’ve signed my share of such fantasy contracts.) The other side of the coin, though, is that, again not believing in intellectual property, I don’t think Marvel owns the character and storyline of Omega the Unknownany more than Gerber does, so if Gerber were to continue the story on his own in some other publisher’s comic book, then by my lights Marvel would have no right to stop him; whereas in reality Marvel no doubt would move legally to stop him. So Gerber does have a rights-based beef against Marvel, though not the beef he thinks he has. (And suspending for the moment the issue of the illegitimacy of IP, I can easily believe that the contractual relationship into which he entered fell short of ideal criteria for full disclosure.)
Leaving questions of rights aside, is it really immoral, as Gerber apparently believes, to use another writer’s characters against his or her wishes? I just don’t feel the pull of that claim; it seems as alien to me as an Arab’s outrage at being shown the bottom of someone’s shoes. In my school days I wrote something like sixty issues of a science-fiction comic-book epic called Jumbo Jet. (Said “jet” was a hundred-mile-long orbiting weapons platform whose attempted takeover by an alien sorcerer accidentally triggers a nuclear holocaust, serves for the next hundred years as a battleground for hordes of spoiled brats rendered immortal by technology and chaperoned by a computerised nanny, is then sent accidentally crashing into the ocean by a robot worker rebellion, and finally, as you’d expect, gets taken over by mutated intelligent dogs from the sunken city of Atlantis.) So how would I feel if someone else started writing stories using my characters and situations? Pretty damned thrilled, actually.
But okay, suppose a lot of writers and artists do share this preference not to have their creations used by others. Collective bargaining with publishers (under an altered balance of power) might be a way to satisfy it, without either government intervention or toothless scolding.
I have a comment on a point of libertarian theory in connection with the new Harry Potter book, but it is a SPOILER, so I’ve placed it in the 
