FFB

All I can say is that if I were one of the vendors who bought that drek before the con opened, I'd be asking for my money back. And then I would be using that money to get a lobotomy because I would clearly need it.

That is epic! No one in line at Black Flag, no business being done, all the Black Flag people hiding/huddling behind their artwork standups, no acetate bootlegs for sale, and stacks of Dum-Dums lollipops on the table. It's like they're calling their customers Dum-Dums, which, of course, they are! They either already got contacted by Marvel or they talked to a lawyer and realize it's just a matter of time until they get the C&D letter. That gawd-awful Ghost Rider exclusive is a lawsuit just waiting to happen, even moreso than the UF4 was. And that Deadpool cover is just lame. Given how freaking expensive that booth must have been, how little money they're going to make at the con, and all of the unsold acetate covers they have left, they are going to be taking it in the shorts on Fan Expo Boston. It's so fitting. CGC may not have the stones to do the right thing, but at least now we know that these stunts will be met with derision and scorn by the consumer.

Yeah, that was the first thing about this response that jumped out at me.

Yes, this is the relevant comparison - the UF4 facsimile edition. Or even the Clayton Crane variant cover pre-acetate. But the original 2011 1st print is not a relevant comparison because of how it was packaged, how much older it is, and the fact that it was not a hot book with many submissions for a few years after it was published.

That's why they should be worried the most about this scandal. If the community thinks that they are selling 10s and 9.9s, that's a horrible thing for the trust in their brand. As I'm sure everyone has noticed, this story isn't limited to this forum. It's literally everywhere. Every site where comics are discussed, almost every YouTuber/Instagrammer/WhatNotter, they're all talking about this and the general tone everywhere I've seen it discussed is outrage and scorn.

I'm sure they could "manage," but if a significant portion of the member dealers/Overstreet advisors are all on the same page and against what you did, you can't really ignore that without running a non-zero risk that the market as a whole turns against your brand.

You just know there will be more than one person recording this. I am just waiting for it all to go down so we can watch. If someone finds a live stream, post it here please.

For once, it seems like literally everyone in the hobby is unanimous on this. Except for the wrongdoers, of course, but that's to be expected. When was the last time everyone agreed about anything?

Richie, maybe you and some of the other large retailers who are also Overstreet advisors and CGC member dealers could write an open letter to CGC with everyone's name on it. That would be hard to ignore.

I guess what I'm most interested in right at the moment, since something is going to happen tomorrow either way, is how all of the other retailers there are going to take this when everyone starts showing up. This was the biggest story of the week and here we are still at the beginning of it. The cross-promotional Ghost Rider book is a crazy escalation from what was already a hare-brained scheme to sell some unsold store exclusives. What will the scene be when they drop the next one with the unsold store exclusives that no one wanted and is now the most infamous and maligned bootleg since the aardvark? This drama is better than a lot of what's on TV.

The calm before the storm.

Oh man, so you're telling me this is all just getting started?

The first sale is from Marvel to the retailer.

Yeah, I'm with you on that one except for one thing - Marvel's response is the big wild card here. If they send C&D letters to Black Flag AND CGC, it will remove CGC's discretion to just "do whatever they want" with the situation.

This is 100% what they should do, and they should pull the existing graded books from the census and invalidate the serial numbers on those gift grades. Honestly though, if they just do this, then after the next shiny object floats by, people won't be talking about this any more.

Now GoCollect has added some fuel to the fire. https://blog.gocollect.com/is-this-c2e2-ultimate-fallout-crain-acetate-variant-a-bootleg/

Well yeah, but now that I've read ahead, I realized that you already said this much more thoroughly than I did and I just wasted my time!

The last part is the part that bothers me and some others the most. The copyright infringement part is getting more ink right now because we're debating the issues (it's fun), but the truly troubling aspect of this whole thing is the arrangement Black Flag had to get these books graded with not just blue labels, but with what seem to be an unlikely and inflated number of 9.9s and 10s, given that the original facsimile editions never had a single 9.9 or higher when submitted to CGC in far greater numbers.

The First Sale doctrine merely allows you to resell the thing you bought without Marvel's approval. Marvel only possesses exclusive rights as to the "first sale" of the product, meaning that once they choose who they sell it to, the purchaser can resell the item without Marvel's approval. You are confusing this with the derivative works protection that Marvel enjoys. Even after the first sale of the original item, Marvel continues to possess the right to prevent others from taking their IP and making a derivative work from it without their approval, even if the protected item was legally purchased by the person making the derivative work.

As a copyright expert, you should know that toys, in particular, are a really bad example to use for a copyright infringement analogue for a printed comic book. Toys have their own huge can of worms when it comes to copyright protection. Also, you seem to think that a license agreement protects someone from being sued for infringement if they exceed the scope of the license. That is indicative of a fundamental misunderstanding of what rights and protections a license agreement provides. If a licensee exceeds the scope of a license agreement by using copyright protected property outside the scope of the license, they are infringing the copyright, pure and simple. They may also be liable under the terms of the license agreement, which may provide for its own remedies, but they are also liable for infringement. It's not one or the other.

I have a decent understanding of what a derivative work is and I cannot think of any reason why this would not qualify. I guess we will have to agree to disagree whether creating a new cover with new art for a comic book, affixing that cover to the comic book, and marketing it as an ultra-limited, exclusive "edition," whose only difference from the original, authorized edition is the affixed acetate cover with the additional, original artwork, constitutes a derivative work. I'll definitely give you credit for a clever and creative argument that the acetate cover is just packaging, but it's pretty clearly not "just packaging," and I would expect that argument to be disposed of in a paragraph or two if Black Flag actually raised it in court. Lord knows I've seen a federal judge make some head-scratching decisions on a few occasions, but in my experience, they usually get things right. I believe that most federal judges and their clerks would have little trouble understanding this case - especially if Marvel's/Disney's lawyers lay it out for them. Federal judges and their clerks routinely have to get their heads around scenarios far more complicated than this one. It would be interesting to see what Marvel's contract says about these retailer variants, but I would be shocked if the contract granted the retailer the right to create any derivative works or any copyright interests at all. I also have no idea whether the contract would expressly prohibit what happened here, but it doesn't need to. The Copyright Act provides all of the protection Marvel would need to stop this from happening without their approval. Other than that, I agree wholeheartedly with the rest of your post.

It wasn't drowned out, it was one of the better posts that kept me reading this 88 page thread!

I have a law degree and 25 years of practice. Some opinions are less relevant than others.

Yeah, it's been more than a few years since I handled an infringement case, but the basic nuts and bolts are still rattling around in the ol' noggin.