Joe Sergi has the kind of career many people in his profession dream of: He’s a Senior Litigation Counsel for the United States federal government.. But Joe has taken his passion one step further by united his knowledge of law and his love of comic books . Not only did he write The Law for Comic Book Creators: Essential Concepts and Applications, but he is also is a comic book writer and novelist — and the instructor for Comics Experience’s Comic Book Law for Creators course!
Starting on October 2, Joe will take students through all of the relevant legal issues for comic book creators in today’s publishing and intellectual property landscape. This is indispensable information for writers, artists, and even those looking to start their own publishing venture.
We spoke to Joe about his career history, comics creators’ interest in the legal issues surrounding creating their own work and work-for-hire, and his approach to teaching. His thorough, entertaining, and informative answers give just a taste of the kind of facts and practical wisdom you’ll gain in our Comic Book Law for Creators course! Space is still available, so sign up now to arm yourself with knowledge!
First, can you tell us a bit about yourself and your background? How did you find a way to combine your profession and interest in comic books?
I have two passions, both of which were inspired by fictional characters.
The first is litigation. I have been told that as a child, I was reading a copy of To Kill a Mockingbird. It was the scene right when Atticus Finch loses his trial and walks past the gallery. The townspeople respectfully stand up and when Scout asks why, Reverend Sykes replies, “Miss Jean Louise, stand up. Your father’s passin’.” I must have been influenced since it fueled me all the way through law school and an LL.M. (Masters of Laws) in tax. For nearly two decades, I have worked as a trial attorney and while I may not defend the rights of Tom Robinson, I am honored to represent the federal government in court as a Senior Litigation Counsel.
The second is comics, especially superheroes. I remember the day I fell in love with superheroes. I sat in a red velvet seat in the Woodbridge Center Cinema next to my mother. On the screen, a larger than life Lois Lane clutched onto the seat belt of a crashed helicopter as it dangled what seemed hundreds of stories above the street of the Metropolis. Slowly her grip slipped on the seat belt. I leaned forward, not even realizing I was holding my breath. As she slipped closer to doom, mild-mannered Clark Kent rushed to a nearby phone booth, and then through a revolving door where he changed into a red and blue costume. All the while, the music played a slow march, “dun dun dun dun.” Then Lois fell. The music picked up the pace. All seemed lost. And then, Superman caught Lois Lane. He caught her as his anthem played. With a smile, Superman announced, “Don’t worry, Miss, I’ve got you.” She shrieked back, “You’ve got me? . . . Who’s got you?” The precipitately angled helicopter chose this moment to give way. I gasped again. But neither Superman nor that anthem could be beaten; he merely held Lois in one hand and caught the copter in his other. He gently flew them both to the roof and then, after making sure Lois and the pilot were okay, politely smiled and said, “I hope this experience hasn’t put you off flying, Miss Lane. Statistically speaking, it’s still the safest way to travel.” With that he took off into the night sky. Afterwards, my mother took me into the nearby Toys R Us, where she bought me Superman comics, a poster, a cape, and a superman action figure (a year earlier, she had bought me my first comic, a Star Wars comic, so this is all her fault on multiple levels).
I never gave up on comics or on superheroes. Not in high school, not in college, not in law school, and not during the god-awful nineties. Now, I create my own comics and novels and hope to someday write the mainstream superheroes I grew up with. In fact, I love the medium so much that, when I have time during my busy court schedule, I write about the history of comics and censorship for the Comic Book Legal Defense Fund.
Comic Book Law is the perfect blend of my two passions and a dream project. As a creator, I attend a lot of shows and do a lot of appearances at comic cons, book festivals and on podcasts. It is also no secret that I am a lawyer. I have found that everyone is looking for free legal advice. As a result of these three things, I am frequently asked questions about legal topics related to comics. These questions range from contract law to whether the fictional Superhuman Registration Act is constitutional. A lot of questions come from creators, who are inspired by more than simple curiosity because, in some cases, this is their livelihood.
As a practicing lawyer for the federal government, I cannot advise anyone or offer legal advice. Over the years, I have learned that sometimes giving an historical overview to their issue and to explain what things mean will allow people to draw their own conclusions and find the solution. Sadly, I have discovered there is a lot of misinformation being dispersed. For example, it’s surprising just how many creators believe the urban legend that copyright can be established when someone mails their material to themselves and keeps the date stamped sealed envelope.
As a result of these questions and the general misinformation in the industry, I asked numerous comic creators (both big name and newcomers) whether they would be interested in a book on the legal cases and concepts relevant to creators. The response was overwhelming that I not only should write this book, but that I was the one that had to write it because of my unique perspective developed through my litigation background and my comic book experiences as both a creator and a fan. I followed up with these creators to determine what topics they would like to see included in the book. As a result of these conversations, I generated the list of subject matters and the basic concept for The Law for Comic Book Creators was born. When Andy approached me about teaching a class on the subject I jumped at the opportunity to help creators with this essential but hard-to-grasp topic.
How has comics creators’ interest in the business and legal side of creating and publishing changed over the years and what do you attribute that interest to?
Comics have become very popular in recent years. Big budget superheroes blockbusters permeate television and cable channels, streaming services, and movie screens. These have been joined by smaller budget and independent shows based on comics outside non-superhero genre. Nearly every day, a new television or movie project is being announced. One can’t walk down a street without seeing a comic book themed T-shirt. Add to that comic book-related video games, theme park rides, and even slot machines, and it isn’t hard to see that the secondary market intellectual property has become more valuable than the comics themselves.
This proliferation of comics into mainstream media has brought with it some high profile litigation. There was the suit by the heirs of Jack Kirby that was headed to the United States Supreme Court. Everyone is aware of the never-ending battle that has waged between the creators of Superman and the company that publishes his adventures. Most recently, there was a string of lawsuits involving the highly successful The Walking Dead television show.
It is more important than ever for comic creators to protect themselves. Sadly, there are very few resources available to the creator. To make matters worse, many of these resources are incorrect or self-serving. This is especially true in discussions related to fair use. In previous semesters of the course, we walk through actual cases using fair use and students vote on the result, which helps explain the nuances that the average creator overlooks. Former students have commented that they no longer look at artist alleys [at comic book conventions] the same way after my course.
What issues do creators have the most questions about?
As I described above, everyone loves free legal advice. Before I wrote my book, The Law for Comic Book for the Comic Book Creators, I occasionally would get cornered at conventions by my fellow creators. Since the publication of The Law for Comic Book Creators, the questions have become more frequent. The most common questions relate to who is the true owner of intellectual property. Sadly, these conversations usually occur after there is a dispute. Even worse, it is usually too late for anyone to do anything other than live with the consequences. The saddest part is that the whole thing could have been avoided with a few simple discussions and agreements up front. Part of the purpose of the Comic Book Law Course is to help creators know what issues should be included in those discussions.
What are some important legal issues that creators often don’t give much thought to?
In my experience, there is a single biggest mistake creators make when proceeding with a new project. That is, they fail to have a written contract before the work commences. There are several reasons to have a contract. First, a contract helps outline exactly what is required of and expected from each co-collaborator. People would be surprised how many misunderstandings occur in handshake deals, misunderstandings that could be avoided by putting [deals] in writing. Second, the best time to have these negotiations are during the early honeymoon period of the collaboration. Third, a contract memorializes these agreements. My book is full of cases involving well-meaning litigants who viewed past collaborations through the lenses of personal experience. A written contract helps provide a contemporaneous record when memories fade. Fourth, and most importantly, a writing is required to fully transfer intellectual property or to create a work-for-hire. Without this writing, regardless of the oral agreements reached, the collaboration results in joint ownership of the IP. This means that the owners can grant nonexclusive licenses, create derivative works, or print the IP without the other owners’ consent. As an extreme example, the writer can license the property to a children’s show and the artist can license that same property to a porn studio. A written contract can determine who owns the property and who has the power to negotiate licensing agreements.
What aspects of law will the course cover? Will it be helpful for people who run small publishers as well as for individual creators?
The course is designed to explore the practical legal world as it applies to comic. We cover everything from how to file for copyright to what should (and should not) be included in collaboration and work for hire and publishing contracts to general privacy rights of celebrities and normal people.
Of course, I teach the course slightly differently. In law school and in my Continuing Legal Education, I have taken course on the subjects. Each topic is presented as follows:
I think this is not very practical, so I focus on looking at the legal landscape more realistically or like this:
Through the course, we examine real world sample agreements and contracts (good and bad) and walk through examples to help spot important issues. These are things that both creators and publishers needs to know.
These tools can be equally applied to protect the person hiring a contractor for work for hire as well as the person being hired to do the work.
I should add that each time I do this class it is slightly different. That is because I start the semester by asking what topics people really want to learn about most. This affects the order I teach and what additional topics are included. For example, I added the privacy law material because year someone was writing a biographic comic that year. Another year, I added the DMCA (Digital Millennium Copyright Act) because of rise in popularity of comiXology. Most recently, we briefly covered international licensing and border policies for Canada because someone was looking to sell action figures there. I always look forwarding to seeing what new issues come up.