With former DC Editorial Director and President Carmine Infantino now the latest Golden/Silver Age creator to sue for the rights to characters he created, it may seem like his is just a repetition of the others who have come before, such as the heirs of Superman co-creator, Jerry Siegel, Captain America creator Joe Simon, and others. It�s not.
Neither is it a strictly a matter of the way things used to be.
(a copy of which was obtained by Newsarama, click to open as a .pdf), which was filed with the United States District Court for the Southern District of New York on June 3rd contains a laundry list of characters and other objects Infantino alleges that he created on his own, and therefore, retains some, if not all the rights to. The complaint focuses on the time period between 1943 and 1967 during which Infantino was a freelancer working for DC. After an offer to come to Marvel by Stan Lee in 1966, Infantino was appointed Art Director. Then, in 1967, Infantino was appointed as DC�s Editorial Director of DC, and then named its Publisher and President in 1971.
Many observers see Infantino�s tenure as DC President and Publisher as the run that shepherded DC from its Silver Age feel into a modern publisher, with stories and characters that were able to compete with Marvel�s head to head. Under Infantino, DC saw the Jack Kirby come over from Marvel, the return of Joe Simon, successful licensing relationships resulting in Shazam, Tarzan
and The Shadow
comics, as well as numerous trials with both new characters such as Swamp Thing, The Demon, Kamandi, as well as new creators who came to comics with a new vision, different from the artists of years before.
Names that came to DC under Infantino included the likes of Berni Wrightson, Marv Wolfman, Denny O�Neil, Howard Chaykin, Walt Simonson, Neal Adams, Jim Aparo, and Michael Wm. Kaluta, as the publisher started gaining a reputation of a place that was open to new ideas � however wild they may be. As a result, many of the titles that characterized DC in the �70s launched under Infantino: the Simon/Kirby Sandman
, forbearer of the Neil Gaiman model; Plop! Weird War; Warlord; Rima; The Jungle Girl; Prez; Brother Power, the Geek; 100 Page Giants
and Weird Worlds
were just some of the titles that marked the era.
Infantino�s tenure at DC also saw Superman vs. Spider-Man
- the first joint DC/Marvel project, as well as the release of Superman: The Movie
(Infantino was supposed to receive a co-writer�s credit on the film, but that was removed), and the transformation of DC Comics from its own business into part of Warner Brothers.
After a contentious couple of years, Infantino was let go by DC in early 1976. For a variety of reasons, as Infantino himself has outlined on more than one occasion, while he worked freelance for DC in the years following his departure as President and Publisher, he never had too much good to say about the company itself. Reportedly, Infantino has never set foot in the DC offices since he was fired.
However, Infantino�s love remained with the characters. Perhaps Infantino�s best-known run in the years following his time as a �suit� was his work on Flash
#290 - #350, the final issue of which �killed� the character, Barry Allen.
That�s some of the history of Infantino�s official relationship with DC, but, as stated above, the complaint concerns the period of time before Infantino began work at DC. As the complaint states, between 1943 through 1967, Infantino worked for DC as an independent freelance artist and illustrator, designing numerous characters and works of art. DC occasionally used the pieces for any variety of media.
The core of Infantino�s complaint centers on The (Silver Age) Flash, the Rogues Gallery, and Black Canary, which, the complaint states, were created between 1943 and 1959. The Flash and the Rogues Gallery, as the complaint states, were based on Infantino�s creations, Captain Whiz and the Colors of Evil, respectively. According to the complaint, Infantino�s source characters were created years before he was assigned to redesign the Flash and create a collection of villains for the hero, whole cloth.
In terms of Flash characters, Infantino�s complaint alleges that he created and/or designed:
Solovar and Gorilla City
Professor Zoom (Reverse Flash)
Mazda, the Heat Master
The Pied Piper
The Weather Wizard
Paul Gambi, the tailor to the Rogues
As viewed in today�s light, the idea that Infantino would even think that he would be able to lay any claim to the characters he created while working as a freelancer for DC would seem ridiculous, but the time frame in which he created for DC was much different from today. Cronyism was rampant, as were handshake (and backroom) deals. In fact, one of the first things Infantino is credited with doing when he came on at the wheel of DC�s ship was to end many of the less straight business practices of the company. The work for hire contracts that are a staple of the modern comics industry weren�t in place, and, as other legal cases have shown, there was plenty of wiggle room in regards to meanings when a creator was asked to create a character.
In terms of the Silver Age Flash, Infantino himself in The Amazing World of Carmine Infantino
, published by Vanguard said that he was told by the editor Julie Schwartz that he was going to be drawing superheroes again, namely, the Flash. Schwartz was, at the time working with Bob Kanigher, who had written the script for the first issue of what would be later seen as the origin of the Silver Age Flash. It was Kanigher, according to Infantino, who told Infantino to design a new look:
Then Kanigher said to me, �Go create a new costume for this guy; forget the old character. You go create something new.� So I went home and designed the outfit that you see today.
In the same passage, Infantino is quoted as saying that Kanigher created the ring that contained the Flash�s uniform, while Schwartz came up with the name of the hero�s secret identity: Barry Allen. �So the creation of the new character was a group effort between Julie, Bob and myself,� Infantino is quoted as saying.
The scenario is an easily seen one � an editor has an idea for a new character, and pitches it to an artist to design, almost informally. In this instance, going by Infantino�s version, he was told to design a new look for the Flash, went to his studio, and did it, without any editorial supervision whatsoever.
Although, what has immediately become a sticking point for many fans is the suggestion in the complaint that Infantino solely created the Flash. As Infantino�s complaint states: �Plaintiff is the man most closely associated with the creation and design of the �Silver Age Flash.�� For fans of Schwartz�s Silver Age work, and revitalization of DC�s iconic heroes, that�s a bitter pill to swallow, as Infantino has said that the creation was a joint effort, while in the same Amazing World
book, Schwartz himself is quoted as saying, �He co-created the Flash��
DC�s version of the creation of the Silver Age Flash, for years, has stood that Schwartz was the architect behind the creation of that character, as well as a slew of others, most notably, Green Lantern and the Atom, both redesigned and revamped frm their original Golden Age versions. In Les Daniels� history of DC, DC Comics: Sixty Years of the World�s Favorite Comic Book Heroes
, Infantino�s contribution to the character�s creation is not even mentioned, rather, the story of the character�s creation, as told by Schwartz came down to himself and Kanigher working together. Infantino is mentioned later, in regards to a design for the costume. In this version, the cowl of the costume is mentioned, pointing out that it was the answer to Schwartz�s complaint about the Golden Age version of the character in that �he had a secret identity but never wore a mask.�
The presence of a cowl on the Flash�s new uniform could prove to be troubling in regards to Infantino�s allegations that he created the entire costume. If, even in passing, Schwartz had made the comment about a mask to Infantino, it could be argued that Schwartz contributed elements to the costume.
Infantino was not quoted in the account of the character�s creation, something which many point to as evidence of Infantino�s dim view of the company of which he served as Publisher and President. In fact, the only mention of Infantino�s tenure in the entire book covering the company�s history are three paragraphs which ultimately suggest that Infantino�s answer to competing with Marvel was to flood the market with titles, which hurt DC�s bottom line, and led to his departure. �We agreed to disagree,� Infantino is quoted as saying.
Splitting hairs somewhat, it�s also questionable that the complaint�s claim that Infantino created the Flash would stand up in court, as the character
, in general terms already existed in the form of Jay Garrick- whom Infantino himself had drawn during the �40s. In that instance, the matter could shift to the issue of the trademark
of the Flash � the unique look and design of the character, which, if his word is to be believed, Infantino did create, either whole cloth, or based on his own character, Captain Whiz.
The Flash and all associated characters which Infantino claims he created have been used countless times since their creation by DC in any variety of media. Infantino�s complaint points out the most recent media version available to the widest audience � the Justice League
animated series on the Cartoon Network.
Flash aside for a moment, Infantino�s complaint goes on to list other characters allegedly created/and or designed by the artist in the previously mentioned timeframe. These include:
The Phantom Stranger
The Human Target
Pow Wow Smith
The Space Museum
The Silver Age Batgirl
The Silver Age Batman (redesign)
The Batmobile design used in the Batman
The Amazing World
book offers some insight on Infantino�s view of the creation of some of the characters. The artist said that he created Captain Comet with Julie (�Julie and I created Captain Comet.� Julie had the idea, and I designed the character.), and that Deadman was a collaboration between himself and Arnold Drake, his accounts of many of the others can be summarized by paragraph 10 in Infantino�s complaint:
As the plaintiff�s career advanced, plaintiff was sometimes asked by the defendants to create and design covers and characters prior to the preparation of a written scripts for the issue itself. Many of DC Comic�s editors requested plaintiff to first create the comic book cover design and then, from that image, the script writer would receive inspiration to create the story and script for the comic book issue.
In other words, Infantino would be asked to draw a cover with the hero fighting a certain type of villain on it. Infantino would both design and draw the cover, and then the writer would use Infantino�s drawing for inspiration. Infantino�s complaint names both Poison Ivy and Blockbuster as characters he created in this fashion � completely from scratch at his own expense, without any editorial guidance.
As Infantino told Jon Cooke in an interview from Comic Book Artist #1
, �Julie Schwartz would tell me to go home and design covers which they would write stories around. I would come in with a series of covers starting with The Flash and later on Batman, Adam Strange, and others.�
And there�s part of the modern echo of Infantino�s de facto allegations of some rather freewheeling business practices of the past. This practice may sound like a legal loophole that would have been long since closed by publishers, long since intent on seeing every character, design, object, and word created by artists and writers while under contract belongs to them, that�s not the case.
Several artists, speaking with Newsarama on the condition of anonymity, said that the cover illustration practices which Infantino alleges mean he has the rights to the characters continue today. In today�s market, production schedules can get skewed to the point where an issue has yet to be written and drawn, but the cover needs to be complete for solicitation in Previews
. As the artists Newsarama spoke with said, each have had several instances where they were asked to design a character for the cover, despite the story and interior work not yet having been completed, or even begun. As one artist pointed out, he was hired and contracted solely to draw the cover, not design a new character, which would, in a perfectly legal world, require a larger paycheck, and more than likely, specific wording regarding the new creations.
One of the artists said that he has since made it a habit to refuse to draw covers which require him to design a new character de novo
As for Infantino�s claims of creating both Batman�s new design and the Silver Age Batgirl, the artist explained in The Amazing World�
that he and Julie Schwartz were given six months to save the character in 1964 by Irwin Donenfeld. Infantino is quoted as saying: �Julie suggested I make some changes to the Batman�s costume as part of our character update/ We developed what was called the �New Look.� This included changes to the ears and nose of Batman�s cowl, as well as Julie�s suggestion of adding the yellow circle around the insignia on Batman�s chest�I also later redesigned the Batmobile, which laster [sic] served as inspiration for the TV show�s version.�
The new version first appeared in Detective Comics #327
(1964). The �New Look� was much more modern than what Batman had seen for the last few years, and, as Infantino stated in The Amazing World�
, was a hit. Infantino claims that it was his new design work on the character and the world he inhabited that led to the television series in 1965 and licensed product line (of which Infantino drew most of the model sheets).
Again, the DC version of Batman�s �New Look� differs slightly, as in Les Daniels� Batman: The Complete History
, the new look is credited almost solely to Schwartz, including the phrase: �A hallmark of the �New Look� was the yellow circle that Schwartz had placed around the bat emblem on the hero�s chest.�
As for the claim of the creation of Batgirl, Infantino said in The Amazing World�
: ��the TV series started to lose momentum by 1967 and producer William Dozier called Julie to say he thought the show would do better by introducing a new female character� Julie and I got together to create Batgirl�He asked me to design what she would look like in and out of costume. I also designed her motorcycle.�
Batgirl debuted in Detective Comics #359
, and in September of 1967, the television series debuted the character, the look of which was based on Infantino�s designs.
As with the Flash, there had been a Bat-Girl character previously, the niece of the Bob Kane-created Batwoman. As Infantino, who rarely hid his contempt for Kane, said in The Amazing World�
: �She was a ridiculous character whose only purpose was to pester Robin�When Julie and I created the Batgirl we all know and love, we weren�t even aware of Kane�s short-lived embarrassment of a character.�
Again, all of this work was performed by Infantino prior to joining the staff at DC, so he was a freelancer. As Infantino alleges, he did the bulk of this work without any editorial direction (aside from the initial assignment). As is always an issue in cases such as these, the amount of editorial direction received by the creator is a key factor in determining whether or not the work is �work for hire� or original work. Likewise, unless the company negotiates ownership, said ownership remains with the creator. Part of the case (if it ever reaches court) will be to prove that DC did or did not negotiate ownership of the characters created by Infantino.
Again, while modern work for hire contracts cover this, a handshake, or a �go home and design this for me,� which seem to be what Infantino is implying his assignments were from DC, may have been all the formal negotiating that was done at the time � aside from a voucher by which Infantino was paid. Additionally, Infantino�s case is not a matter of the artist terminating the transfer of copyright as was seen in the Siegel and Simon cases. Infantino�s complaint alleges that no transfer was ever made and that, since the time of their creation, he has been the rightful owner of the characters and/or their designs.
Also � covering his bases, in the complaint Infantino alleges that he retains the rights to the work created given that comic books do not fall neatly into one of the nine categories of works which qualify as �works for hire� under the definition of the Copyrights Act of 1909 (under which the work would fall - although the Copyright Act of 1909 did not define nine categories. The nine categories were established in the 1976 Copyright Act and forward).
As Newsarama has reported on several occasions, this has been seen by many observers for some time as a possible means for comic creators to lay claim to works created for publishers. But again, it's unclear why Infantino's complaint alleges that comic books do not fall into a work for hire category under the 1909 law, when the 1909 law did not
list work for hire categories.
As it stands, Infantino is seeking over $4 million from DC, a declaration that Infantino owns what he claims, as well as an injunction preventing DC from using the characters, and the impounding of works which infringe on the copyrights.
While the matter itself has been the subject of considerable discussion since it was filed, something else that has caught the attention of many is the timing of the filing. Given that, in the case of the two major characters named in the complaint, the only person who could offer direct testimony against Infantino�s claim is Julie Schwartz, who died in February. Kanigher died in 2002.
On the surface, it appears that Infantino may have used the tactic of waiting for anyone who could speak against you die, but, as reported in The Times of London
, Infantino started on this path a few years back, after seeing an interview with a Warner Brothers executive who only praised and named the company�s characters, rather than the creators.
�They never once mentioned me. I was really insulted,� Infantino told the Times
According to the Times
� report, Infantino contacted DC in 2002, and was offered $25,000 as compensation. The offer insulted Infantino, who turned around, and offered DC $25,000 for the characters.
�That shut them up,� Infantino told the Times
Infantino also told the Times
that the formerly widespread practice of �by signing this check, you agree to�� method of getting creators to relinquish rights to their creations had been done away with years ago.
The largest question mark on the entire matter is whether or not the case will be, as Infantino has requested, heard by a jury. Legal experts approached by Newsarama doubt that DC would risk having the case heard by and deliberated upon by a jury, given the risk involved � a win for Infantino by a jury, even one that would be appealed by DC, would open the door for dozens of other creators who feel that they�re in the same boat as the artist against, most likely, both Marvel and DC.
Others point to a probable period of negotiation and a cash settlement by DC, although one legal expert who spoke to Newsarama pointed out that, by virtue of the complaint itself, Infantino has diminished the role of Julie Schwartz in the creation of the named characters as well as the history of the company, and there are many individuals in positions of power at DC who would not look upon that favorably.
Finally, the claim made by Infantino in the complaint that DC infringed upon his copyrights in using the characters he created between 1943 and 1967 is somewhat questionable, as the statute of limitations for copyright infringement is three years. The statute would apply to claims made, in the generic sense of, �I created X and Company A used it without my approval.� It�s a different matter if there was no knowledge of the use, or the use was kept hidden.
Additionally, no action for infringement of copyright can be made until registration of the copyright claim has been made with the Copyright Office. In other words, if an individual or company wants to sue for copyright infringement, that individual or company must have filed a registration upon which to sue - there must be official, competing claims.
Unless it was neglected in the complaint, Infantino has not filed any registrations for the characters named in the complaint. Given these two facts, it was suggested to Newsarama that a Motion to Dismiss could be filed � and successfully entertained by the court.
Infantino�s attorney, Nicholas Perrella, declined to comment for this article