The Marvel Comics folks are suing the companies that market an online game called "City of Heroes" over a claimed infringement on copyrights and trademarks. I haven't paid enough attention to the matter to explain it beyond that or to have any sort of opinion. But when I do get around to reading up on it, this analysis seems like a good place for me to start.

Elsewhere on this site (here, if you're interested) I have three articles I wrote about what I call "Unfinanced Entrepreneurs." This is not the perfect title for these people since some of them do have money, in some cases lots of it. But they all act like they have none when they ask writers to write "on spec" or expect artists to draw things on the promise of future payment. Just about everyone who can write or draw has been exploited by these lepers, sweet-talked into laying out free work for some project that then fails to materialize.

A few days ago, I mentioned another, related scheme that's used to rip-off freelancers. About the same time, there was a discussion of creator exploitation on a discussion group for computer animators, and someone there linked to my three articles. As a result, I've had an avalanche of e-mails from folks who want to tell me their story of how they were exploited. Since the three articles were first published in 1998, they've been among the most widely-read and circulated columns I've written, bringing me hundreds of comments and messages, all telling me such tales. Here are a few excerpts from this new batch — and I'm withholding names since I'm not sure all those who wrote wanted to be quoted by name…

…the entire project went on and on and on. I did approximately 350-400 revisions, 4-5 completely new 3-D models. Each time I did a new render, I would hear "it's fantastic…it's perfect…they'll love it" and then get an e-ail saying "it's 99% there…all you have to do is change X." It took nearly 3 MONTHS to get it done. And what is worse than that…when it came time to collect the final 50%. the guy disconnected his phone, disconnected his fax, disconnected his cell phone, shut down his website and disconnected his e-mail…

…there was an article I wrote for which the contract in my hand, with all sorts of signatures on it, clearly told me a pay schedule of $300 on submission and $300 more upon publication. After getting a check for $200 and then another $200, I was met with the response, "that's our new pay schedule." I complained enough that they cut me a check for $200 more that was clearly not a vendor check, so someone knew they were wrong, but couldn't convince finance, apparently. But my question is how much of this problem falls to us? The thrill of getting a pitch accepted, or merely of having someone say, "I'm willing to pay your for something you will create" often blinds us to the rigors of accounts payable. I'm unagented, so I don't have the luxury of saying "Sure, send the details to my agent" etc. And I'm lucky that most of my correspondence is done via e-mail, as if the buyer could see my glee at being accepted, they'd probably cut their payment in half. I believe I've done enough un-paid, or under-paid work in my life that I'd be immune to it, but I still fall for it, every time…

…UE's are rampant in the 3-D industry due to the false notion that the computer does all the work for us. I have only been in the 3-D industry professionally for 3 years and I cannot begin to count how many times I've been approached to do free work. It's frustrating, annoying and infuriating…

…I figured since this was a big star on a TV series, he had the connections he said he had, so I decided to invest in writing the script he wanted me to write. It took about three months and all the time, he called me every week to ask how soon he could have it because he knew this studio was interested or he was having lunch with this director. I was past page 88 when I called him to ask a question and he never returned my call. I called several times and I finally got his wife who said, "Oh, he's no longer interested in that" and hung up on me…

…I spent three weeks doing a CGI demo of these characters which he said he had the rights to. I finally found out he didn't have the rights. He said he did so I'd do the demo and then he planned to take it to the owners and use it to get them to give him the rights…"

Happens all the time, as you can see. (Don't bother sending me more of these. I have plenty, thank you.) And there's really nothing you can say to any of them except that we all have to stop falling for these scams. We have to value our work highly and not give it away for free or even gamble it on longshots.

Before I get off this topic and back to writing something that I'm actually going to get paid for, I wanted to respond to this message I received from Charlie Eckhaus…

Regarding your The Great Negotiation-After-the-Fact Scam article, I can certainly sympathize. I completed some freelance software engineering for my former employer (a medium-size company). Although I was paid without great incident, albeit at the last minute (which I imagine is fairly typical), at the beginning I still wondered if they'd try to put one over on me. Which brings me to the point: you didn't mention any legal recourse that was available to you, and I wonder if you've ever used it or looked into the steps required to pursue justice? If so, did it turn out to be too expensive? Was it difficult to make your case because it was your word vs. their word? Is that what the guy on the other end is counting on?

In my experience, they usually count on the premise that you're not going to hire a lawyer in order to collect a small amount. I once worked for a guy whose accountant explained to me, over lunch and off the record, that the boss often spoke of "the second negotiation." The first negotiation was the one where he promised you $1000 and you agreed to do the work and started. The second negotiation commenced when you were too deep into it, he thought, to just walk away. That was when he'd introduce some loophole to deny your fee ("Gosh, I'm sorry…you must have misunderstood me. I said it would be $1000 if my partners came through with the funding…") and at the same time, he'd start talking about some great-sounding major project that was imminent. The concept here was that you'd think, "Hmm…I can go to Small Claims Court over $1000. That will take time and I might not win…and either way, I'll never work for this guy again and maybe get a reputation as a troublemaker. Or I can eat the loss, stay on his good side and maybe get that other project, which will more than make up the $1000." Sometimes, just when he figured you were on the fence, he'd say, "Kid, I really like you. Tell you what…let's split the difference. I'll pay you $500 out of my own pocket." In almost all cases, you'd wind up grabbing the cash — voila! — he got a $1000 job done for half off. Occasionally, he could even convince you to forget about any money for that work because the next project was so promising. My accountant friend told me the guy used to plan for this kind of haggling in his budgets. He'd tell the accountant, "I made a deal with this guy for X but I'll get him down to Y (or maybe even nothing) in the second negotiation."

In some cases when I've been ripped-off, I've just written it off as not worth the trouble. On TV and movie deals, I've gone to the Writers Guild a couple of times…and the mere fact that this organization exists, God love it, makes a lot of studios and producers think twice about cheating writers. The same thing has happened because I have lawyer(s), including two who are fairly well-known in some circles. I've had to call them in a few times, and I believe there have been situations when I've been paid what I was owed only because the other party knew I had attorneys, could spend the money to bring them into the matter, and would. You don't always have to fire a weapon for it to be effective. They just have to know you have it and will use it.

Most of all, you just have to have a good manure detector, especially for those offers that sound too good to be true. And it helps to remember that honest folks don't flinch if you ask them, early in your association, to put things in writing. You might be afraid to act too pushy about money and contracts when you're just starting a project…but if that will kill the deal, then it's probably the kind of deal you ought to kill before you get too far into it.

Okay…enough weblogging for tonight. I'm going back to work on a script. Hope I get paid.

Here's Nikki Finke with an interesting take on the Michael Eisner-Mike Ovitz trial.

Fred Kaplan reports on how the latest test of the "missile defense shield system." Three sentence summary: It doesn't work. It's never shown signs it can work. And the people behind it seem unwilling to consider that possibility, no matter how much it costs us.

Ursula K. Le Guin is the author of the Earthseas novels. Ursula K. Le Guin is not happy with the adaptation of them into a current TV mini-series. Ursula K. Le Guin explains why.

Frank Rich places the Mel Gibson movie about Christ into the bigger picture.

How did the animated Fat Albert come to be? My pal Floyd Norman was there at the beginning and he tells us all about it.

Yes, as it turns out, there is! [Thank you, Frank Buxton.]

Ah, you know what would make this holiday season perfect? I'd love to see the movie, It's a Wonderful Life, re-enacted in thirty seconds by cartoon rabbits. But of course, there's nowhere you can see that.

If you ever order from Amazon-dot-com or think you might ever order from Amazon-dot-com, you will want to read this.

So here's what the controversy over Donald Rumsfeld's performance comes down to: Liberal columnists think he's incompetent and we should blame the president for picking and retaining this guy. Conservative columnists think he's incompetent but we shouldn't blame the president for picking and retaining this guy. [Washington Post, registration probably a must]

Over at his weblog, Tom Tomorrow writes about a problem he had that I've also had and that many freelance writers and artists have endured. In his experience, he wrote something for Slate and then, months later, they sent him all sorts of forms he'd have to sign in order to get paid for the work. He found some of these forms objectionable but that almost isn't the point. Even non-objectionable terms should be disclosed and mutually agreed-upon before the work is done. Once you do the work, you're pretty much stuck. You can't undo the work, can't take back the time and effort you put into it.

Sometimes, you can argue them into dropping the requirement that you sign away your First Born to get the $300 that they owe you, but sometimes you can't. At least three times that I can think of in my career, the following situation presented itself: I was hired by someone with whom I had a good, ongoing relationship. In other words, a friend. After the work was done, that person came to me and said, often apologetically, "The front office says you have to sign this to get paid. I'm sorry I didn't tell you about it before but I just found out they have this procedure on work of this sort." So if I object and don't sign, I don't get paid and I get my friend in trouble. I once had one call me and say, in effect, "Please…I was new here, I didn't know about the procedure. They're going to fire me if you don't sign."

Another variation: You do the job January 1. By February 1, you haven't been paid so you inquire. They send you a new contract form which went into usage on January 15 and they say, "Here's what you need to sign before the accounting department can issue you a check." You object to the content of that form and you point out that they're changing the terms of the work after you've done the work. They say, "Well, this is how it is. The parent company, which is in Botswana and where no one speaks English so you can't talk to them, has instituted this new policy. The accountants are strictly forbidden to issue a check unless they have that form on file." This has also happened to me at least three times, probably more.

Writers, artists and other kinds of freelancers get burned by this, one way or the other, no matter what they do. There have been times when I've walked away from money that was owed me. There have been other times when I've signed contracts that I'd never have signed, had I seen them before I did the job. Sometimes, I've felt baited-and-switched. Other times, I've felt it was primarily my own fault for not saying to the person doing the hiring, "Okay, but before I do the work, please send me a copy of all documents that pertain to this assignment." This is not always easy to say, especially when they're calling you with a great job or one that they need in a hurry. But it should be said, especially in the age of the Internet and fax machines when they can have that information to you in a matter of minutes. We all need to say it often enough that it becomes Standard Operational Procedure.

I still haven't gotten around to reading (or even getting) the new Gerard Jones book on the history of the folks who shaped the comic book industry, Men of Tomorrow. But my pal Pat O'Neill has done both and written his review.

Dave Eggers writes a nice piece in The New Yorker on Monty P. and their upcoming Broadway excursion. Also, here, Eggers is interviewed and elaborates. Check both of these out now as New Yorker links have a way of not being active for long. [Thanks, "larrybatman," for pointing it out.]

This morning, George W. Bush presented the Presidential Medal of Freedom to retired General Tommy Franks, who oversaw combat in Afghanistan and the initial invasion of Iraq, former CIA Director George Tenet and former Iraq administrator L. Paul Bremer. Franks, I can almost see. Things did go well, at least for a time in Afghanistan…but he was a leading advocate of the position, which I don't think anyone now thinks was wise, that we didn't need more boots on the ground in Iraq. Still, I can't even give half-credit to Tenet or Bremer, and I think even a lot of Bush supporters would love to blame them for all the screw-ups and failures. The trouble is that this administration's policy is to never admit there even have been screw-ups or failures.

This is more of that "I meant to do that" mentality. We don't admit when things go wrong. We insist they went so right, the people responsible are deserving of medals. It keeps the denial going…and in this case, it may prevent either Tenet or Bremer from writing a book that the Bush administration won't like.