Legal Question in Intellectual Property in New York

To determine the question of the rights to his drawings you need to know more about the agreement(s) under which the work was originally produced. Was it a work for hire, in which case the rights rest with the publisher? Was it truly freelance, in which case the rights may rest with your father's estate?

Those questions can't be answered on the facts you offered, and thus what permissions -if any - are necessary is an open question.

Hello,

The answer is very likely yes, or in the very least you do not want to use the panels without checking as to their ownership status. The key issue is one of copyright, as in who owns and/or controls the copyright to each panel/drawing/illustration. Typically comic book authors assign the copyright to the publisher as a "work for hire" or on an employee basis. However, as a freelance artist your father may have only granted temporary licenses to third parties. You should evaluate each drawing to determine how the copyright was handled.

I hope this answer was helpful and if you need to consult with me, please feel free to contact me. Many thanks and good luck with your project.

Best,

Kaiser

If the comic book companies own the copyrights in the drawings, then yes, you need permission from the companies if you are going to use the same drawings in a biography about your father. However, are you sure the companies own the copyrights?

If your father generated the drawings as a freelance artist after the Copyright Act of 1976 went into effect (January 1, 1978), he would, absent an agreement, own the copyright in the work he was commissioned to generate. That's because it would not fall into the legal category of a work "made for hire." On the other hand, if he was an employee, then his drawings would be considered works "made for hire" and, pursuant to the Copyright Act of 1976, his employer(s) would own the copyrights in the drawings. The key here is to determine whether your father really was a freelance artist, or if he would have been considered an employee. The U.S. Supreme Court, in a 1989 case called Community for Creative Non-Violence v. Reid, set out a number of factors in determining whether the creator of a particular work is in an employer-employee relationship or is a freelancer. Did your father supply his own tools, work in his own studio, work his own schedule, receive payment contingent on the completion of the drawings, and/or have sole discretion over hiring and paying assistants? The more of these that you can say "yes" to, the greater the likelihood he would be deemed a freelance artist instead of an employee. Did the comic book companies pay social security taxes for your father or provide him any employee benefits? If not, then this weighs in favor of him being a freelance artist. These are some of the factors that come into play in determining what sort of relationship existed between your father and the comic book companies.

The discussion above deals with a situation where there was no express agreement relating to the copyrights and where the drawings were generated after January 1, 1978. If the drawings were generated prior to this date, then the above factors do not apply and the law favors the comic book companies, unless there is a written agreement otherwise. If one or more agreements do exist, what is said in those agreements with regard to copyright ownership would be dispositive. It's also important to realize that a copyright is actually a bundle of rights and your father might have given only one or two of those rights to the comic book companies, leaving the rest for himself. As you can see, it is important to know what, if any, agreements were made.

It may seem odd, but an artist can be liable for copyright infringement of a work that he generated in the past. Actually, in 1977, that issue came up in the case of Franklin Mint Corp. v. National Wildlife Art Exchange, Inc., where an artist generated an illustration of a cardinal for Florida-based National Wildlife Art Exchange, and assigned the copyright to them, then later generated another illustration of a cardinal for Pennsylvania-based Franklin Mint. National found out about the second illustration, which was being published in National Geographic, and brought a copyright infringement claim in the Federal District Court for the Eastern District of Pennsylvania. The Court ultimately ruled that the illustrations were not similar enough for there to be copyright infringement. However, if the illustrations were the same, the case would have turned out differently. For reminiscence on this case by the lawyer that provided the defense, see http://www.drinkerbiddle.com/files/Publication/093b9d24-f5c7-4838-a335-6a5d4

b279ee8/Presentation/PublicationAttachment/27178705-0f2d-4bc4-afa7-f3baf77a8

470/Seidel_article_Apr_01.pdf

As you can see, there is a real danger in proceeding without investigating your particular situation further. Accordingly, I highly recommend that you seek legal counsel.