Deazley, R 2014 Comics, Copyright and Academic Publishing. The Comics THE COMICS GRID Grid: Journal of Comics Scholarship, 4(1): 5, pp. 1-12, DOI: http://dx.doi. Journal of comics scholarship org/10.5334/cg.ap COMMENTARY Comics, Copyright and Academic Publishing Ronan Deazley* This article considers the extent to which UK-based academics can rely upon the copyright regime to reproduce extracts and excerpts from published comics and graphic novels without having to ask the copyright owner of those works for permission. In doing so, it invites readers to engage with a broader debate about the nature, demands and process of academic publishing. Keywords: copyright; academic publishing; comics scholarship 1. Introduction The Comics Grid: Journal of Comics Scholarship is one of a small but growing cohort of scholarly publications dedi- cated to the study of comics that has emerged in recent years. As an academic and a long-standing comics fan, The Comics Grid appeals to me for a number of reasons: first, it is committed to the principles of open access and open peer review; second, it genuinely embraces the potential that digital publication offers to academics in its com- mitment to rapid scholarly publication; and third, to my knowledge, it is the only journal in this domain that is actively trying to improve the study of comics by educat- ing its authors and readers – in an informed and reason- able way – about copyright and the place of copyright in comics scholarship. Consider, for example, these two panels taken from Fleetway’s short-lived serial Crisis (1988–91) [Fig. 1]. They are taken from Her Parents, a short story that appeared in Issue 31, written by Mark Millar and drawn by John McCrea. In terms of copyright, do I need to clear any rights to reproduce them here?, and if so, who should I ask? Is this a work of joint authorship? Do I need to ask both Millar and McCrea?, or did they assign or license their rights to Fleetway at the time? When Her Parents was first published, Fleetway was owned by Robert Maxwell; how- ever, in 1991 Maxwell sold Fleetway to Egmont UK (part of the Danish-based Egmont Media Corporation). If Egmont UK now owns the copyright in this work, can I reproduce it without their express permission? Or what if I have the permission of Millar and McCrae? Does that matter? This article is intended to supplement the work that Fig. 1: Millar and McCrea, Crisis #31 (1989) 17/5–6. The Comics Grid has already begun in challenging some cherished myths about the use of copyright material in It considers the extent to which UK-based academics can the context of comics (and other academic) scholarship. rely upon the copyright regime – the Copyright Designs and Patents Act 1988 (hereafter: the CDPA) – to reproduce extracts and excerpts from published comics and graphic novels without having to ask the copyright owner of those * Professor of Copyright Law, University of Glasgow, United Kingdom works for permission. In doing so, it hopes to encourage [email protected] greater openness in discourse and debate about a medium Art. 5, page 2 of 12 Deazley: Comics, Copyright and Academic Publishing that occupies an increasingly significant place within our article. There are 22 FAQs to which the publisher provides cultural and political lives. Moreover, within this article, boilerplate responses. Of these, 13 expressly relate to the we might also begin to sow the seeds of a broader, nec- reproduction of visual material. To the question, ‘[d]o I essary debate about the nature, demands and process of need permission’ to reproduce the work?, the answer is academic publishing. typically: ‘Yes’. Consider, for example, the following: ‘Do I need permission if I use an image from the Internet? / 2. Comics scholarship and clearing rights Yes, you will need to find out the status of the image and Academics who research and write about the visual world find out who owns the copyright (this may be the pho- often complain about the way copyright law can hinder tographer, artist, agency, museum, or library). You will their scholarly endeavours, and with good reason. Writing then need to get permission from the copyright holder to about visual work without reproducing that work is an reproduce the image in a journal article’.5 Indeed, only two impoverished exercise, for both writer and reader. But of the 13 FAQs relating to visual material acknowledge the reproducing visual work can trigger concerns on the part potential to reproduce work without permission for the of the conscientious author or – more often – demands purpose of criticism or review; these relate to, respectively, on the part of the publisher about the need to secure the use of ‘screenshots or grabs of film or video’6 and the copyright permission. In this respect, comics scholarship use of ‘very old paintings’.7 is no different from any other field of visual or cultural What is not clear from this FAQs document is whether studies. Clearing rights for publication can be a frustrating the publisher is purporting to accurately represent the and time-consuming business, and academic publishers law in this area. If so – as we shall see – the FAQs docu- often manage the business of copyright clearance by mak- ment is clearly deficient. If, however, the publisher is sim- ing their contributors responsible for securing permis- ply using the FAQs document to set out the parameters of sions. European Comic Art is typical: in its information for its own editorial policy on the reproduction of copyright- contributors, it sets out that ‘[u]pon acceptance [for pub- protected third-party material, then so be it: the publisher lication], authors are required to submit copyright agree- is perfectly entitled to adopt such editorial guidelines as it ments and all necessary permission letters for reprinting sees fit. I would suggest, though, that in cleaving to an edi- or modifying copyrighted materials, both textual and torial policy that fails to take full advantage of the scope graphic. The author is fully responsible for obtaining all which the copyright regime allows for the lawful repro- permissions and clearing any associated fees.’1 duction of copyright-protected material without need for Not all publishers, however, adhere to such a black and permission, the publishers are missing an opportunity to white position. The Journal of Graphic Novels and Comics enable its academic contributors to augment and enrich is published by Taylor & Francis. In the Authors Services comics scholarship as a discipline. section of its website, the publisher acknowledges that In this respect The Comics Grid is more ambitious and reproducing short extracts of text and other associated forward thinking: it actively promotes the lawful use of material ‘for the purposes of criticism may be possible copyright-protected content for the purposes of aca- without formal permission’.2 demic scholarship. The journal’s copyright policy sets To better understand when permission is required, the out that copyright material is reproduced on the basis publisher directs authors to the Publishers’ Association of ‘educational fair use’, with readers and contribu- Permissions Guidelines. For readers who are unfamiliar tors directed to Columbia University Libraries’ Fair Use with this organisation, the Publishers’ Association (here- Checklist for further information. This is a checklist that after: the PA) is the principal UK-based trade organisation has been developed to help academics and other schol- representing book, journal, audio and electronic publish- ars make a reasonable and balanced determination ers.3 It plays an active role in helping its members under- about whether their use of copyright-protected work is stand and navigate copyright law and policy debates. permissible under s.107 of the US Copyright Act 1976: This includes providing members with access to a copy- the fair use provision. right infringement portal (a web-based tool for serving Obviously, the journal locates its copyright advice within take down notices to ISPs hosting content that infringes the context of US copyright law. But, as a Glasgow-based copyright),4 as well as the production of guidelines for academic, with an interest in both the history and the publishers on a range of related topics. One such pub- current state of the copyright regime, my particular focus lication is the PA Permissions Guidelines (hereafter: the within this article concerns the extent to which UK-based Guidelines) referred to on the Taylor & Francis website. academics – or indeed anyone interested in writing about The Guidelines are intended to ‘assist UK publishers who: comics – can rely upon the UK copyright regime to repro- a) may be approached for permission to reproduce copy- duce extracts and excerpts from published comics and right material published by them, or, b) may themselves graphic novels without having to ask the copyright owner need permission to reproduce material published by oth- of those works for permission. ers’ (PA 2008: 1). We will consider the substance of the To address that issue, we must consider three key ques- PA’s Guidelines later in this article. tions. What constitutes a work protected by copyright To better understand what rights need to be cleared, within the context of comics publishing? What does it Taylor & Francis direct authors to the publisher’s own FAQs mean to speak of insubstantial copying from a copyright- about using third-party copyright material in an academic protected comic? And, what scope do existing – and Deazley: Comics, Copyright and Academic Publishing Art. 5, page 3 of 12 Fig. 2: Brown, Yummy Fur #21 (1990) 18/6. Fig. 3: Brown, Yummy Fur #20 (1990) 5/1–4. forthcoming – exceptions to copyright afford the academic between 1983–88 (Issues 52–111) before being collected in this regard? Where appropriate, we will also reflect and published in book form as two volumes (Church & upon how the PA Guidelines address these issues.