I’ve been fascinated by the debate surrounding the new Watchmen series of comic books that DC are publishing at the moment.  There are two camps, broadly speaking, and each have arguments for and against publishing the series, but these arguments tend to get smudged together in a homogenous whole, meaning that it is difficult to determine who or what is right.  The Pro-DC argument is that DC has a legal right to publish any Watchmen related material they like, the Watchmen contract was explicit at the time of signing, Moore could have been reasonably expected to understand the ramifications of the contract and any moral claims to ownership by Moore are invalid because he has used characters that he didn’t create in his own work, most famously in League of Extraordinary Gentlemen and Lost Girls. The Pro-Moore argument is that the legal justification for publishing Watchmen related material is against the spirit of the contract signed by Moore, who had a reasonable expectation for Watchmen to go out of print within 12 months, and it doesn’t matter that Alan Moore uses characters from other works because they are in the public domain, the creators are dead and his works are transformative anyway.

For me, this boils down to two issues – the legal right to publish and the moral choice to publish.

Unequivocally, DC owns the rights to Watchmen and can publish whatever they like without so much as a phone call to Moore or Gibbons.  They have to pay royalties, which is what they’ve been doing for Watchmen ever since its publication.  They have been fair with film royalties, with money going to Gibbons as Moore refused to take it, but unfair with merchandising royalties: the toys and other spinoff goods sold by DC were labelled as promotional items, and thus not royalty payable.  The rights to Watchmen have been offered to Moore and Gibbons on a number of occasions, usually as part of a deal to produce a prequel or sequel, but Moore has refused to accept the accompanying terms and the rights have remained with DC.

Unequivocally, Alan Moore has the right to publish stories using characters in the public domain, which is, broadly speaking, any character created by an author who died more than 70 years ago.  Lost Girls is an interesting exception because the stage play Peter Pan, and the character of Wendy and all derivative works, remains in perpetual copyright in the UK because of a special provision in the Copyright, Design and Patents Act 1988.  The provision doesn’t give the copyright holder the right to refuse any adaptation, however, it just means that Great Ormond Street Hospital is entitled to royalty payments for derivative works.

As J. Michael Straczynski has been a vocal defender of Before Watchmen, it is interesting to note that the reason he enjoys much of his control over Babylon 5 is because of the separated rights agreement that was negotiated by the Writer’s Guild of America.  While Warner Bros has televisual rights to the series, JMS has reserved rights on pretty much everything else, including novelizations, dramatic stage rights, film rights and merchandising.  JMS has not had to rely on a moral argument against profiting from his work as there is already an effective legal argument to protect him.

So, is it morally right to use characters or stories not created by yourself and derive a new work?  It is difficult to talk about this without personalities getting in the way.  Clearly Alan Moore has taken characters and situations from a variety of sources without permission and created new derivative works with them.  If Alan Moore can do it, why should those wanting to take his work and derive something from it feel restricted in doing so, especially as they have the explicit legal right to do so?  Pro-Moore arguments hinge upon the intention of the creator, as Moore has been vocal in his opposition to the prequels.  But, Moore has taken characters, however obliquely, and done things that their creators may not agree with.

Looking at Hyde, the complaint is that Stephenson wouldn’t like his character to be a murderous homosexual rapist.  Anyone who’s read Stephenson’s original would know that Hyde is already explicitly responsible for murder and it is heavily implied that he is involved in the worst sort of deviant excesses during his evening sojourns.  Is this markedly different from Moore’s Hyde?  If anything, Moore’s Hyde is more humane than Stephenson’s so any complaint should perhaps be that the character is not evil or animalistic enough.

What about other things that the original author might object to?  No stage plays?  No novels?  This would lead to some nonsensical situations, as no-one can give permission for every possible likely derivation. 

Does it make a difference that all of the characters Moore used in League of Extraordinary Gentlemen and Lost Girls are by authors that are long dead?  If it’s morally wrong to modify, update or transform works by dead authors, then is there a time limit where it becomes okay?  If you’re arguing that it is wrong to modify anyone’s work after death, then you’re arguing that no derivative works of any kind, ever, of anything can be produced; no film adaptations of Shakespeare plays or radio performances of Beethoven symphonies.

The middle ground, that a work remains in copyright until a period of time has passed after the author’s death seems fair.  The thing to argue about is how long before works enter the public domain.

So, if DC has the legal authority and it isn’t inherently immoral to make derivative works, what’s the problem with Before Watchmen?  The issue at the heart of this is the contract between DC and Moore and Gibbons.  Is it fundamentally a bad contract for creators?  The discussion revolves around the reversion of rights if the product goes out of print.  Whether or not this was likely to happen, this is still a pretty terrible contract for someone who wants to own their work as there is an obvious way for rights to be withheld in perpetuity.  Moore and Gibbons, if they were serious about owning Watchmen, shouldn’t have agreed to the contract in the first place.  If DC was serious about setting up a fair and equitable creator-owned contract, then they shouldn’t have put the reversion clause into the contract in the form it currently takes and made assurances to Moore and Gibbons that they would own their creations, as it’s pretty obvious they were only ever going to let them do so if Watchmen wasn’t a success.

Before Watchmen hasn’t really changed the DC/Moore situation, but it has dragged it into the open, kicking and screaming.  If you are a creator of any sort, it is a stark warning not to trust in promises of good faith or flattery, especially in the comic business

And a reminder to get a good lawyer…