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Brian Duffy fighting for cartoon rights

Brian Duffy, recently fired by the Des Moines Register, is considering legal action to retain the rights to his cartoons, which the Register says they will donate to the University of Iowa. Apparently, according to a sketchy report by KCCI-TV, mirrored by E&P, the newspaper considers the cartoons “work for hire,” which would give the Register full rights. Duffy notes that the cartoons have been tagged with both his and the newspaper’s copyright notice.

Community Comments

#1 Wiley Miller
February/24/2009
@ 9:50 am

Legally, I don’t think Brian has a leg to stand on here. Ethically, it’s a different matter, perhaps, but that’s not what the courts care about.

And this will bring up another inequity in the law. The newspaper will be able to make a sizable write off for donating the cartoons to the university (which I’m sure is their only motive for doing so), but if they had allowed Brian to keep the art that he produced, he would not be allowed to write them off on his taxes if he made the same donation.

So here’s a lesson for those of you wanting to break into the profession… don’t expect any respect.

#2 Joe Rank
February/24/2009
@ 10:44 am

I would hope that Brian had contracted a “first publication rights”, which would have limited the paper’s claims. Unless Duffy agreed to something to the contrary, the original artist retains ownership and intellectual property.

Here’e another lesson: keep all original artwork. The publication gets a copy.

The whole episode just seems spiteful and cocky by the management. “Dilbert” and “Shoe” could do a collaboration about it.

#3 Stacy Curtis
February/24/2009
@ 10:50 am

The lesson is confront these issues BEFORE you get hired.

And why wasn’t he taking his originals home every day or at least at the end every week?

You would think if he was really concerned about owning his original editorial cartoons for the past 25 years, he would have thought about this before now.

#4 Joe Rank
February/24/2009
@ 11:09 am

Good points, Stacy.
There is a wealth of information over at findlaw.com , under intellectual property and copywright law. Individuals states also have different laws, so one has to check their location for application.

One would imagine that after 25 years, the employee relationship would have undergone multiple changes. What may have been loose and easy going at first might be imagined to become less informal.

Any new work that I do that is solicited or commissioned, I have them sign that “first publication rights” only, and covering all subsequent works.
One of the better things about being a freelancer is that hard copies are at home.

#5 Phil Hands
February/24/2009
@ 11:22 am

I just ran some quick numbers, and assuming that Brian did about 250 cartoons a year over 25 years for the Des Moines Register, that’s 6,250 editorial cartoons over his career.

I don’t know what each original will be valued at, but the Newspaper is likely going to be able write off about $1 million dollars for donating the work of a faithful employee that they kicked to the curb. What a scam!!!!

#6 Wiley Miller
February/24/2009
@ 11:42 am

“The lesson is confront these issues BEFORE you get hired.”

Yep. That’s what I did when I went to work for the San Francisco Examiner. I made it clear that the original art belonged to me, that they were paying for the first run print rights. But you should get it in writing.

Of course, it’s all a moot point these days, as no one is hiring!

#7 Joe Rank
February/24/2009
@ 11:45 am

The article states that duffy has hired an attorney.
There would also appear to be some standing, as previous compilations had been reprinted and moneys collected under joint copywright.

What the Register is doing then could be argued to be a violation of bailment, and Duffy could sue. A really good attorney could even make the case that Duffy’s termination was done with malice and forethought concerning the value of his portfolio; and sue for damages.

Maybe cutbacks at the paper have included legal counsel?

#8 Wiley Miller
February/24/2009
@ 12:51 pm

“A really good attorney could even make the case that Duffy?s termination was done with malice and forethought concerning the value of his portfolio; and sue for damages.”

Now THAT would be fun! I’d love to see that.

#9 Alan Gardner
February/24/2009
@ 12:59 pm

I’m not going to pretend to be a copyright expert, but my understanding is that if you’re a freelancer, you retain copyright (e.g. Joe Rank). If you are an employee (e.g. Duffy) – the company owns the intellectual property – unless its contractually spelled out otherwise.

What Brian THINKS (to quote the original story “he was always under the impression” is that they’ve had a joint ownership. That doesn’t seem like sound legal footing. Hope he’s got some signed paper somewhere that spells out what he really owns.

#10 John Lotshaw
February/24/2009
@ 1:22 pm

“Maybe cutbacks at the paper have included legal counsel?”

Oh, yeah… Along with the accountants, they’re always the first to go…

#11 Milt Priggee
February/25/2009
@ 8:03 am

I always wondered why some cartoonists were escorted without much notice, out of the building by security.

Hopefully, Brian has a copy or two of his books which sets precedent of joint ownership.

and WOW, talk about ‘starting all over’…..

#12 Wiley Miller
February/25/2009
@ 8:11 am

Note to the few cartoonists who still have a staff job at a newspaper:

Take the originals home with you every day. Make a copy of them to keep on file at the office.

#13 Ted Rall
February/25/2009
@ 8:44 am

No doubt, it’s important to get these things in writing. And if you don’t have it in writing, he who has physical possession will be in a stronger position to negotiate in the event of a dispute–so take your artwork home with you every night.

That said, this behavior is morally dubious at best on the part of the Register. First they kicked him to the curb, then they frogmarched him out of the building and confiscated his building ID, now this?

And people wonder what happened to employee loyalty.

#14 Matt Lupton
February/25/2009
@ 9:09 am

The whole idea of using a former employee’s work as a tax write off is morally repugnant, but the legality seems to be relatively clear here.

The cartoons I do for my full time employer are done on company time, and as such, they own the resulting artwork. Duffy must have known that would be the stance of the paper should things go south.

While novel and maybe even worth the Hail Mary, he’ll have a very difficult time proving they terminated him with the tax write off in mind.

#15 Dan Collins
February/25/2009
@ 10:17 am

After 30 years with Larry Flynt publications on salary, the company put us all on independent basis two years ago to save costs, however Larry gave us a new contract that gave us all co-ownership rights retroactive to everything we ever drew for him back to the start of our relationship. Now is that not a prince of a publisher who has the utmost respect for his cartoonists? Of course they’re all Hustler cartoons and what can you do with those? And they did cut our salaries some. Still it was nice to know I finally had my life’s work to use how I see fit. And he is still contributing to our health insurance costs by 50%. What a guy!

#16 Paul Fell
February/25/2009
@ 10:58 am

When the former Lincoln Journal eliminated my staff position, I brought up the subject of getting my originals with management.

The general manager, who hated my guts, responded with a “generous” offer that would allow me to have 12 (that’s it!) of my originals and I would be allowed to make copies of the other cartoons for a fee of $1 each.

There’s nothing like the kick in the gut of losing your job to be followed by the kick in the crotch over your originals.

I did subsequently find a way to get my hands on most of my stuff, which I’m sure would otherwise have gone in the trash.

#17 Joe Rank
February/25/2009
@ 1:45 pm

There appears to be a conflict between the Mike Peterson report and the KCCI-TV one.
The KCCI has it that the Register contends that as Duffy was a paid on-staff employee, all of his product was done on company time, and they own the copywright.
If the paper is maintaining a “work for hire” position; that is fuzzier, and would fall under contract provisions. Generally, regularly produced ( what would be individually contracted free-lance ) cartoons are not in the parameters of “work for hire”. ( Unless part of a larger project, such as a series of storyboards for a movie. )

It may be that the paper has tried to claim BOTH positions ( which it cannot ). They may have undercut themselves with such a move.

Milt Priggee’s observation about precedence is likely to be the determinative factor. The way that the proceeds were divvied concerning the secondary publications of the previous published works should make it clear to a court just who thought what belonged to whom.

( Also, did Duffy ever sell or give away any of his originals? Who made those decisions, and who benefitted? )

#18 Wiley Miller
February/25/2009
@ 2:34 pm

“Also, did Duffy ever sell or give away any of his originals? Who made those decisions, and who benefitted?”

That’s a very good point. If he didn’t need to get permission from the paper to give or sell any of the original art, then that would a strong indication of ownership by Brian Duffy.

#19 Mike Peterson
February/25/2009
@ 2:41 pm

IANAL, but I have worked both freelance and on staff. As far as I know, “work for hire” specifically covers a situation where a person is hired to create works which are then the property of the employer. An example would be columns written by a newspaper columnist — that’s what he’s hired to do, just as a widget maker in a widget factory is hired to make widgets that then belong to the company.

Where it generally hits the news is when, for instance, a chemist at a drug company makes some kind of breakthrough and wants to capitalize on it personally, or when a software engineer wants to set up shop using a program he developed while working for someone else. And where it becomes more interesting is when the thing that the fellow developed was something he did in his garage and that was somewhat tangential to his actual job, but that he then let the company use in their operations and now wants to market to other companies as well, only his employer claims ownership.

When I was running educational programs for a daily paper, I began writing serialized stories because the ones we could get from other sources were pretty lame. But I did it with a clear understanding — I retained copyright to the text, the artists I used retained rights to their illustrations and the company, in exchange for allowing use of their software and equipment, as well as covering some mailing and marketing expenses, got 50% of the gross sales to other papers.

When our paper changed hands, I dropped a memo to my boss restating the terms of the arrangement, just to establish a paper trail.

And when I quit, I first backed up all my stories and pics to disk and took them home, deleted the materials from the servers at work, and then told the company that I was leaving.

Trust in Allah, but tie up your camel.

#20 Eric Devericks
March/7/2009
@ 11:46 am

I got into this argument at the Seattle Times. They told me they owned the originals I told them they did not. No resolution was reached. I just took them home and I let them see me do it.

#21 Wiley Miller
March/7/2009
@ 1:22 pm

” I just took them home and I let them see me do it.”

Well, that sure sounds like a resolution to me, Eric!
You took possession, the say you take possession and did nothing to prevent you from taking possession, so that sounds like they gave tacit approval.

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