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That Invincible Lawsuit

Comics, FYI
That Invincible Lawsuit
By Graeme McMillan • Issue #4 • View online
Robert Kirkman’s 2005 shenanigans come back to haunt him. (Again.)

I admit it; when I wrote last week that Image Comics was starting off its 30th anniversary year with two of the week’s biggest news stories, I didn’t expect them to be at the center of arguably this week’s biggest, as well. Then again, in a week that otherwise saw the announcements of DC’s Flashpoint Beyond – celebrating the, uh, 11th anniversary of the crossover in which Africa was labeled as being “ape-controlled” – and Marvel’s X-Men ‘92: House of XCII, which mixes Jonathan Hickman and Fox’s Saturday line-up for some nightmarish nostalgia mash-up, perhaps we shouldn’t be too surprised that the news that colorist Bill Crabtree was suing Robert Kirkman over the animated Invincible adaptation feels like such a big deal.
There’s quite a bit to unpack here all around. Firstly, there’s the fact that this isn’t the first time Kirkman has been sued by a co-creator on a high profile Image title over this kind of thing; in 2012, Tony Moore filed suit against Kirkman, claiming that he’d been duped into surrendering his rights in The Walking Dead as the result of a 2005 attempt to simplify the rights situation for the series to make it more attractive to potential media companies looking to adapt it. This led to a countersuit filed by Kirkman against Moore a month later in which he argued that he’d actually overpaid the artist for his work co-creating the property – a ballsy move considering the success of The Walking Dead in comics alone, never mind as a TV franchise – as well as accusing him of breaching the terms of the contract that Moore was suing about in the first place by going public about it via the lawsuit.
In response, Moore filed a second suit against Kirkman, seeking a declaratory judgment that he was the joint author of The Walking Dead and his other collaborations with Kirkman (the notably less successful Battle Pope and Brit, as well as unpublished collaborations Dead Planet and My Name is Abraham), a decision that would legally allow him the right to exploit the works for himself via new adaptations. Both suits were settled later that year, as announced in a statement that read in part, “Neither side will be discussing any details but will instead happily and productively spend their time focused on their own work and move on in their lives.”
It’s perhaps worth noting that the attorney representing Moore in the earlier suits is the same attorney in representing Crabtree in the new case: Devin McRae, who not only brings with him some experience in dealing with Kirkman, but also a fine flourish when it comes to writing lawsuits. “Fraud and deceit has become a standard business practice for Kirkman and is apparently where his true creative aptitude lies,” the Crabtree complaint declares at one point, adding that such behavior “has led to the present lawsuit (and evidently to Kirkman’s business success’ generally).”
(He wrote something very similar in the second suit McRae filed on behalf of Moore: “Kirkman is a proud liar and fraudster who freely admits that he has no qualm about misrepresenting material facts in order to consummate business transactions, and it is precisely that illicit conduct which led to the present lawsuit (and to Kirkman’s business ‘success’ generally).” He’s got a way with words, especially when it comes to arguing that Kirkman is a serial liar and that’s why he’s successful.)
The lawsuit itself argues not only that Crabtree was a co-creator of Invincible – “Kirkman and Walker provided the plot, characters, dialogue, themes, sequence of events and the drawings, and Crabtree the color, and with that, the setting, costumes, mood, and overall look and feel. This collaboration turned into finished comic books, expressing the three authors’ ideas through the collaborative combination of artwork, coloring and accompanying text” – but that Crabtree had a specific agreement with Kirkman with regards to owning part of Invincible as a comic book and media property: in addition to a page rate, he’d get 20% of single issue profits and 10% of revenue generated from film and television adaptations. 
It’s that last part that the lawsuit is all about. According to McRae, Kirkman approached Crabtree during San Diego Comic-Con in 2005 to offer him what appears to be the same deal he was offering Moore at the same time, for the same reasoning: that media companies would be more eager to adapt a comic if there was one point of contact with regards to ownership, and that Kirkman himself should be that one point. Crabtree was allegedly offered a “Certificate of Authorship” that seemingly retroactively characterized all of his Invincible work as work-for-hire while Kirkman, again allegedly, told him that his rights and financial stake would remain unchanged if he signed.
Note that Crabtree doesn't get a co-creator credit on the first issue's credits page.
Note that Crabtree doesn't get a co-creator credit on the first issue's credits page.
According to the lawsuit, Kirkman appeared to uphold his end of the bargain through both the MTV and Paramount options on Invincible, but when Amazon Prime took interest in the property, things changed; Kirkman, the suit alleges, “informed Crabtree that Kirkman LLC was the sole owner of the Work, that Crabtree had no ownership interest and was not entitled to any monetary proceeds generated from the Work as a result of the Certificate of Authorship. When Crabtree questioned Kirkman about why Kirkman continued to pay Crabtree royalties on the Work for years after the Certificate of Authorship, Kirkman stated that those royalty payments were actually just ‘bonuses,’ that he paid at his discretion.” 
The suit asks for Crabtree to be recognized as a joint author on Invincible, accounting on any monies owed as a result of that decision, and applicable damages. We’ll see what legal challenges are brought in response to the suit – will Kirkman countersue like he did with Moore? – and what the eventual resolution is, although I cynically expect a settlement in months, just as happened with Moore’s lawsuit. Here are the things I’m genuinely curious about, that fall outside of the direct result of the suit, though:
  • What was Kirkman up to in 2005 that he was chasing down co-creators to get them to sign their rights away? Was there actual media interest in Kirkman’s books happening at the time, or was he just really far-sighted? (As part of the Tony Moore lawsuit, it was stated that there was no media interest in Walking Dead at the time, and Kirkman’s claim to the contrary was fraudulent.) Which other creators also signed rights away at that time, and should we expect them to sue Kirkman in the future?
  • The suit asks for an audit of monies earned by Invincible; I wonder how that’s going to work out, especially in light of the fact that, as part of the 2012 Walking Dead lawsuit from Tony Moore, Image Comics was subpoenaed seeking information on Kirkman’s relationship and financial compensation from the company – something that Image objected to.
  • More broadly, I wonder how (if at all) this suit could redefine the role of colorist in creative teams moving forward. The suit doesn’t just rely on a claim that Crabtree had a financial stake in Invincible, it states a couple of times that Crabtree’s work was integral to the title as a whole, being responsible for creating the look and feel of the book and the world in which it takes place. “In particular, Crabtree’s artistic vision for the Work has been utilized and drawn upon extensively in subsequent comic issues and the subsequent television adaptation of the comic book series,” the suit argues. That’s a valid argument, and the role of colorists in defining the look of any given comic is something that’s arguably been under discussion and redefinition in the past decade or so. (Why, it was just eight years ago that they started getting cover credit on DC books…!) Will Crabtree’s fate here be influenced by, or will it end up influencing, how creators and fans consider the importance of colorists moving forward?
I reached out to Crabtree for this story, and he referred me to McRae; McRae, in turn, declined to comment. Kirkman, meanwhile, has yet to respond to the lawsuit. Kirkman, meanwhile, continues his own legal action against AMC over bad faith dealing and unpaid profits from The Walking Dead TV shows. So it goes. 
In response to me suggesting that the announcement of Rebellion’s upcoming Battle Action relaunch was underreported last week, it was pointed out that AfterShock Comics announced an all-new Jim Starlin comic earlier that week with little-to-no pick-up from press. This despite Jim Starlin offering a great quote in the announcement about the fact that, with AfterShock, he gets “the freedom of doing what I want with a story without having to lie to the editor. I also know Joe (the editor) won’t sabotage the tale, as happened with my last work for Marvel.” Jim Starlin has to Jim Starlin, I guess.
The title, for the curious, is Midnight Rose; it’s a 64-page oneshot written by Starlin and drawn by Nikkol Jelenic, with colors by DC Alonso, and it’s about “a journey through the life of a singular, frightening and very human creature,” according to the publisher. In other words, it feels particularly Starlin, which you’d think would make it worth reporting on considering, you know, the Thanos of it all… and yet. 
(AfterShock also announced The Ocean Will Take Us, a new high school horror mini from Rich Douek and Carlos Olivares this week, as well; you can find out more about that here.)
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Graeme McMillan

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