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Artistic Hypocrisy

Jack Kirby and Daredevil images as created by Michael Cho, reprinted here for editorial purposes
Jack Kirby and Daredevil images as created by Michael Cho, reprinted here for editorial purposes

Updated August 3rd (see bottom of post)

Let me say first off, I straight up love Michael Cho’s art.  He’s quite talented, has a pretty cool retro style, and does some really good stuff. With that said, he recently made a post where he took someone to task for wearing a t-shirt that depicted a piece of his art. I read through the comments and most of them just seemed to be “Yeah, good for you Michael, tell him!”, naysayers were ignored, and in truth they devolved into trollish behavior.  The story was even reported on by the Joe Shuster Awards website.

Something didn’t sit right with me though.

If this is a commercial venture, I say “More power to you Michael”, but if it is not…if it’s one fan who took it upon himself to make a t-shirt and wear it to a local con…really?  Where’s the harm?  Why should an artist respond with anything other than flattery when someone is so inspired by their artwork to create a one-off t-shirt out of it?  I certainly wouldn’t expect the artist to go off advocating what amounts to vigilantism on his behalf.

The T-shirt in question is from an image that Mr. Cho posted to his blog in February. The only difference is that the person who created the t-shirt removed Mr. Cho’s signature (which isn’t cool in any case).

I must confess in the heady days of my first colour inkjet printer, when I stumbled across a 10 pack of “print and iron-on transfers”, I took some of my favourite comic book covers, printed them on $8.00 Haynes T-Shirts, and had some of my favourite t-shirts that I’ve ever owned.  I didn’t feel guilty about this, I didn’t consider it offensive to Stan Lee, Jack Kirby, Steve Ditko, Jim Lee, Todd McFarlane, or George Perez.  I was honouring their work by wearing it on my person and loudly proclaiming “I am a fan of this work, look how cool it is.  Comics are cool!”.

Mr. Cho says:

Firstly, I don’t like people ripping off my artwork to put on t-shirts. Even if they print only one, for themselves. My work is clearly copyrighted by, and owned by me. It says so at the bottom of this blog.

Here’s the problem with this comment.

When, you put your stuff on the internet it is in the wild and you no longer have control over it. When you do so, people are able to put it on their own computer and do with it as they will.  If you want to keep stuff for yourself, then hang it in a gallery with an express “No photographs allowed” mandate.  That’s the only way you can be sure it will never get out into the wild.

There’s another point here too though.  The sheer hypocrisy of Mr. Cho’s arguement.

Again, from the same post:

I don’t want to make money off of his memory or likeness. Kirby has a fine estate, and unless they authorized the work, I would never ever want to violate his memory by exploiting him one more time.

Mr. Cho has a problem with making money off of Jack Kirby’s likeness…however he doesn’t mind making money off of Kirby’s creations. His most popular prints feature Iron Man and the Silver Surfer Kirby creations.  For this year’s Fan Expo he’s already pre-sold a convention commission of Daredevil.

Now I’ve seen Mr. Cho at many shows, some of my friends consider him a really good friend, and a couple of times I’ve considered purchasing a print or a commission from him.  Mr. Cho’s artistic style is very inspired by Jack Kirby, but he does most of his work in monotone, which works really well with his style and creates cool “pop art” pieces.

His subjects are usually Marvel and DC characters.  Characters which to my knowledge Mr. Cho does not own copyright over.  Nor to my knowledge does he pay a licensing fee to Marvel and DC for these.

At conventions Mr. Cho regularly sells his very nice, high end prints for I believe $50-$80.00 $20-$40.00 each.  A friend of mine bought a commission of a Marvel character off him last year for $200.00. Not bad money, especially considering he will sell double digits in both prints and commissions at this year’s August Fan Expo.

This also brings up the copyright issue.  Can you claim copyright on an image which isn’t yours in the first place?  Can I create an image of Superman, and claim copyright on that image when I don’t actually own the license for Superman?  I’m not a copyright lawyer, but I don’t believe that my copyright as an artist supersedes the existing copyright of the original creation.

Update – This is in fact true. If I create an image of Superman, DC Comics still owns the copyright on Superman, but I have copyright on the image which I created. My rights as to what I can and cannot do with this image are still largely governed by the copyright on the original creation. I can for example sell my drawing, but I cannot make a mass run of prints of that drawing. Certain details are still murky though. How many is considered “mass run”? At what point do the lawyers have to get involved so that I’m not diluting their brand?

Also, Mr. Kirby isn’t a public figure, so does Mr. Cho indeed own copyright on this image of someone who’s image is not inherently copyrightable by him?

I’m not sure the answer to those copyright questions, but here’s the artistic hypocrisy as I see it.  Mr. Cho has a problem with people stealing his artwork to create their own t-shirts, but regularly does the same with the intellectual and corporate property of others, and indeed has profited off it in the past.

I wonder how the corporate overlords at Marvel and DC feel about Mr. Cho’s profiting off their creations?

Update – and my last word on this particular post

First, some clarifications:
My prices on Micheal’s prints were wrong. Those have been updated in the story.

Micheal closed comments after anonymous trolls overtook the posts.

My understanding of copyright is a little off. Artists own the copyright on the image they create even if it is an image of another person or entity’s creation. They do not have the right to reproduce that image, although publishers have turned a blind eye to small print runs and one-off sketches.

Which means that Michael Cho owns the copyright to the image of Jack Kirby that he created. If he created a picture of me, he would own the copyright to the image of me, but not the copyright to my likeness. He could then go ahead and create prints and t-shirts of me, and I guess there’s not much I could do about that other than make a blog post asking people to tell the person who was wearing the t-shirt not to wear it.

I’m still not convinced that a really over-eager law clerk for a nameless faceless won’t challenge all of this some day.  I just refuse to believe that if I make up a limited edition print run of 20 copies of my hand rendered version of the Coca Cola logo and sold them for $10,000.00 each, that an army of vultures…err, I mean lawyers…won’t descend on me with the quickness.  What defines limited? Is there a hard number? Is 100 too many? Is it 1000? This all seems so very vague, and my dealings with lawyers has taught me that vauge means “not permitted”.

Finally, the crux.
My title was intended for shock and awe (hey, I took journalism, and worked in editorial for nearly a decade, I learned in that time how to craft a headline that got reactions).

I am aware of the power of the word “Hypocrite”. I used it intentionally because it is a powerful word.

A better title might have been “Artistic Double Standard”. It would still get my thesis across, but would probably offended Michael less.

My thesis still remains, I personally don’t see the harm in one individual making one t-shirt.  I do see the problem in a commercial enterprise making copies of this t-shirt.

I understand that Michael is concerned that members of the Kirby Estate could be offended by the t-shirt and think that someone is licensing Kirby’s image.

I think if the people he’s concerned about lead balanced lives, and didn’t obsess over comics and comics culture…well maybe…just maybe this whole thing wouldn’t have happened, and that guy in Charlotte could wear his t-shirt without the fear of being a victim of vigilante justice.

By Brian Garside

Brian is a digital experience expert, and part time internet superhero. He focuses on digital first design, digital strategies, content management, website usability, and user experience. He was part of the team behind BalanceDo, the co-founder of All New Comics, and the chief strategist at NorthIQ.

16 replies on “Artistic Hypocrisy”

It’s an interesting argument. My guess (and it’s only a guess) is that he has some form of blanket licensing agreement with Marvel and DC. Otherwise, he is a huge hypocrite.

There’s often a disconnect with established artists and the fans. Robert Sawyer (sci-fi writer) dislikes second-hand bookstores and resellers. Gone are the days of simply wanting the most people to consume your material. Metallica…well, we all know what a bunch of goofs they were about Napster.

When it goes from dream to job, it switches from consumption at any price…to what price am I getting?

In most countries, the Visual Arts (which includes comics and comic strips) are considered copyrighted to the artist the instant they are created, so it is important that artists have a timeline or some evidence of when they created the work originally.

With the internet it’s very easy for people to lift artwork and use it for other uses, so as long as they have some record and evidence that the artwork was created by them they do have some copyright protection.

While the companies do own the publishing rights to their own copyrighted characters such as the Marvel and DC superheroes, it is a generally accepted practice that artists can reproduce likenesses of those characters in drawings so long as they are not publishing them. The artists own the image itself, provided it is original.

In the case of Cho’s original Kirby image, someone lifted the image from his website and deliberately omitted the artist’s signature. If they had asked his permission he probably would have said no, unless it was with the blessing of the Kirby estate.

In this particular case, how do we know from this single image that it is a one-off fan creating a single t-shirt for their own use or whether or not it is one of a number of t-shirts being created and sold somewhere in the United States?

Unlicensed t-shirts and other items bearing reproductions of copyrighted characters and/or artwork can be considered copyright violations and in the case of the Kirby drawing, Michael Cho is the artist who owns the copyright.

If it had been a Michael Cho Daredevil drawing, then Marvel owns the publishing rights to the drawing and could pursue legal action. Michael Cho does not make t-shirts with his superhero drawings, just his own original drawings, which he owns the copyright on.

A similar scenario would be music publishing — it’s okay for a band to cover someone else’s song for a live performance, but if they want to sell CDs of them performing the song they must pay royalties to the original songwriters who own the copyright. In the case of the visual arts, you can “cover” a character for a sketch or drawing and profit from it, but if you decide to publish that drawing in a book or as a print or on a t-shirt, you need the consent of the character’s copyright holder to reprint it. for profit.

Most publishers look the other way when professionals do small run prints and or sketchbooks/artbooks, as it can be considered promotion/advertising for their properties and it isn’t worth pursuing legally (nor was it worth it for Cho to pursue the t-shirt creator here), they generally ask that the artist simply acknowledge that they own the copyright. So —- a Daredevil drawing is fine, a Daredevil print in low numbers should say “copyright Marvel Entertainment, Inc.” and an artbook should say artwork copyright Michael Cho, Daredevil copyright Marvel Entertainment Inc.

Interesting. I’ve never heard of a band performing a non-recorded live cover at a bar being charged with copyright infringement. Ever.

Nevertheless, how was Cho to know that was merely a fan one-off? In fact, how do you know it wasn’t? I certainly don’t know either way. I don’t spend a lot of time in the USA trolling the t-shirt shops.

I would take the fact that Michael has done work for Marvel Comics as a sign that they don’t care that he does drawings of their characters for fans and collectors for profit, or that he makes prints of said drawing like a zillion other visual artists.

And having just returned from San Diego where every professional artist with a booth was selling prints and sketchbooks featuring corporate-owned, copyrighted characters and none of them have lost their jobs, had their employment threatened or been sued by the companies as a sign that it isn’t an issue. In some cases it can be considered art training or prep work for professional work with Marvel and DC as they don’t train artists, they hire people who can draw their characters by looking at samples.

Certainly I could understand them initiating lawsuits if said representation was unflattering or offensive as it paints a negative image of a corporate character.

But we’re talking about something slightly different. We’re talking about a specific image by a specific artist, on what looks like a professionally-made t-shirt, and the artist has taken offense. Why would that make him a hypocrite? Why should he share your opinion of flattery? It’s not like he can do anything about it really, unless he finds a “smoking gun” t-shirt company advertising his stolen image. It’s just an annoyance.

i think kevin boyd’s more than adequately spoken to the concerns you’ve aired in this post. i just wanted to say while i understand your points, it seems unfair not to give michael an opportunity to rebut them. did you contact him at all?

if it were me in his shoes, i probably would have been a lot more flattered to have my art appropriated by a fervent fan, if they hadn’t removed his signature. a few times in recent memory, people passed off things i’ve written on the internet as their own. i didn’t enjoy it even though i put those words out there. i hope you can understand how that might hurt, and take the enjoyment out of somebody appreciating your work.

Kevin, no offense intended by this, but have you ever had to deal with clearing music for anything? Trust me, I speak from experience that anything to do with the music industry is a quagmire that would boggle your mind. I was around when the lowly internet suddenly gained the attention of the CRIA, and suddenly gave a former employer of mine a six figure bill for “airplay” of royalty free music that was being played on video clips on their site. I got a VERY large (and very expensive) lesson in music law that year.

I was pretty specific with what I think is hypocritical;

“Mr. Cho has a problem with making money off of Jack Kirby’s likeness…however he doesn’t mind making money off of Kirby’s creations. His most popular prints feature Iron Man and the Silver Surfer. For this year’s Fan Expo he’s already pre-sold a convention commission of Daredevil.”

I know that no artist is going to lose their job for selling prints, I know that it’s been going on for ages. The change I’ve noticed is that the prices on these things are going up DRAMATICALLY, to a point where it will start to gain attention. 10 years ago prints were $10.00 each, and sketchbooks were a few bucks, we’re getting to the point where these items are 5 to 10 times more expensive than they were a decade ago.

Maureen; Mr. Cho spoke volumes on his website, and closed comments when counter points were made.

This post, and site in general is my personal opinion, I am not the press (and even if I were, this is an opinion piece), so I didn’t feel a need to conduct an interview with him.

If he wants to respond here, that’s cool. I don’t delete posts (I did edit Kevin’s first one to add some paragraph breaks because it was tough to read, but I don’t edit for content).

I do understand the attribution thing, totally. I’m a bit of an artist myself, and that would bother me to no end. I made mention of how that wasn’t right in both my original post, and the follow up to Kevin above. Make no mistake, removing Mr. Cho’s signature was morally wrong whether it was a private or commercial reproduction.

Brian, as Kevin mentioned, it’s the actual artwork that was originally created by Michael Cho that’s in question here. And as Michael has mentioned on his site, any original artwork that’s shown on his blog/site is copyrighted. Yes, anything that’s “out there” on the internet could be considered “fair game”, but we artists hope that the general public would be at least mindful of such things and not be jerks about it by trying to make money off of our work. Not that we know that that’s what’s going on here with that one guy, since no one’s seen any other copies of this shirt out there, but still, it’s enough to make me a little queasy to see this going on.

In your example it seems to me that your boss “published” music by airing it. Covering a song at a bar for an unrecorded performance is a little different and not really addressed in your chastisements – I understand it would be different if they recorded and aired said concert — however I have been informed that clubs must pay some sort of fee to have live music played at their venue that could be construed as a means of protecting publishing rights by pre-emptive billing.

Brian, I don’t think artists (or retailers LOL) seem to mind making money off of Jack Kirby’s co-creations & creations (or Stan Lee’s or Steve Ditko’s or Bob Kane’s or Siegel and Shuster’s, etc.) as they are corporately owned and oft-requested by collectors and fans. It’s accepted practice in the comics community that artists can produce drawings of the characters and get paid for them.

However, stealing a drawing without permission is not an accepted practice, especially when the artist owns the copyright on that drawing. If the artist condones it, it is a signal to others to follow suit.

BTW, I think I’ve been pretty clear that I think it is wrong for someone to make a t-shirt using a copyrighted image for their own personal use.

PS How much money do retailers send to the Kirby estate when they sell back issues?

PSS I didn’t know you were a commie loving liberal. Good to know. Good luck with the t-shirt project.

PPSS Where the f____ did that unicorn come from?

And you are 100% correct on live performances of copyrighted music in public places (except for churches and private events with just family/friends). That is protected under copyright law.

So maybe the guy should just wear the t-shirt in his own home and not wear it outside in public.

Sure, that sounds great, and should he DARE to show his face in public with that t-shirt, I feel safer knowing that the Kirby Collector mob will chase this base villain down with pitch forks and torches!

I highly doubt that he made or bought that t-shirt with malice. However you and all of your supporters are absolutely justified in treating him like the ABSOLUTE MONSTER that he is!

I hope against HOPE that you guys win your valiant crusade, and we see this guy’s charred garment on the streets one day.

That will teach him.

All New Comics sells (get this, it’s a crazy hook)

All.

New.

Comics.

I know! Right? Isn’t it an incredibly clever name? PLUS it starts with A which means we get higher listings in alphabetical programs and such.

Yes at shows we sell a few dollar books, but the large majority of those are overstock that we’ve paid full pop from Diamond for, some is collection stuff, but it’s a fraction of a fraction. I’ve personally donated to HERO every year that we’ve been in business, so I feel okay about what I sell, and that I’m doing good stuff for my industry.

Also…and this is a HUGE difference, I’m not out there crusading for the rights of Jack Kirby. I’m a dude who thinks it’s not causing irreparable harm when someone makes a t-shirt.

Which in case you missed the point, is what this was about.

I’m moving on to other issues now…like unicorns.

Actually, I thought the point of this column was so that you could show your cleverness by reviving a debate that died over a month ago and calling Michael Cho a hypocrite (the column is entitled “Artistic Hypocrisy” after all) for taking offense to a picture he was given of a guy wearing an unauthorized t-shirt with his work on it while at the same time making money off of drawings of Kirby created characters.

Kevin, comics are PART of my life, not my whole life, so I didn’t notice this until recently (and thought it was posted in July).

Maybe you could chillax a little, get out, see some of our cloudy, perpetually rainy sky, and stop commenting on my blog which obviously bugs you so much.

As soon as I have a chance I will post an update to this. Until then, please leave it as is.

Thanks.

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